38 Iowa 252 | Iowa | 1874
— -I. In proof of the establishment of the road the State introduced a record entry from the record of roads and highways of the county court of Lee county, of date June 6, 1859, as follows:
The State also introduced a record of said court, respecting said road, dated January 14, 1860, as follows:
“ This being the day for final action in this matter, and action on the report of the commissioner, which was filed November 7, 1859, recommending the establishment of said road, and the court being fully advised in the premises, (the testimony of disinterested witnesses having been taken,) it is therefore ordered and decreed that said road be, and the same is hereby established, as reported by the commissioner, as follows: Beginning at a stone in the center of the southwest quarter, section 2, township 68, north of range 5 west, thence south, etc., etc., to Fort Madison and Franklin road, said road to be thirty-three feet wide.”
Defendants objected to the admissibility .of these records as evidence, as not showing jurisdiction or authority to locate or establish the road, and because they do not tend to prove the location and legal establishment of the road described in the indictment. The objection was overruled, and defendants excepted.
That the difference between the language employed, and
. When the evidence was closed, defendants, by counsel, asked that the district attorney be required to select which defendant he would proceed against, and to dismiss as to the other.
The court overruled defendant’s request, and this action they assign as error.
It is a sufficient answer to this assignment that the record' does not show that there was not evidence of an obstruction to the road made by the defendants jointly. It nowhere appears that all the evidence is abstracted. Error will not be presumed. It must be affirmatively shown.
Affirmed.