— This is an appeal by the State in a criminal case, upon questions reserved, upon the refusal of the court below to give to the jury certain instructions which were tendered by the prosecuting attorney. If there was any record made of the trial, the verdict of the jury, or the judgment of the court, it is not embraced in the transcript. Sec. 1883, E. S. 1881, relating to appeals in such cases, is as follows : “ In case of an appeal from a question reserved on the part of the State, it shall not be necessary for the clerk of the court below to certify, in the transcript, any part of the proceedings and record except the bill of exceptions and the judgment of acquittal. When the question reserved is defectively stated, the Supreme Court may direct any part of the proceedings and record to be certified to them.”
As the record does not contain the verdict and judgment of acquittal, the appeal presents no question for the consideration of this court. It might be inferred from the last part of the section above quoted, that this court should, of its own motion, direct the clerk of the court below to certify to us the record of the verdict and judgment. The writ of certiorari can issue only upon motion, supported by affidavit, showing a diminution of the record. We do not judicially know but that the clerk has certified all the record that was made in the case.
The appeal is not sustained.