State v. Jennings , 131 Or. 455 ( 1929 )

Rehearing denied December 31, 1929 ON PETITION FOR REHEARING (282 P. 567) The petition for rehearing contends that our decision ignored several assignments of error that had been presented to the circuit court and upon which rulings had been obtained. The process by which the alleged rulings were procured, according to the defendant, was a motion for a new trial which set forth the items of evidence and portions of the instructions to the jury, of which complaint is now made. While the record contains such a motion it bears no indication that it was presented to the circuit court. But even though we assume that the circuit court denied the motion we are convinced that such a proceeding did not operate to save for our review the various matters mentioned in it. A party can not sit idly by, see the court receive evidence to which he believes he possesses a valid objection or give an instruction which he feels is erroneous, speculate upon the result, and in the event that it disappoints him employ a motion for a new trial as a means of bringing up for our review matters to which no objection was made at the time of their occurrence: 3 C.J., Appeal and Error, 743; Mooney v.Kinder, 271 Pa. 489; Gulf C. S.F. Ry. Co. v. Moser, (Tex.),277 S.W. 722. And see Southern Oregon Co. v. Kight, 112 Or. 66 (228 P. 132). The limitations to the above rule, stated in the case last mentioned, are not applicable to the present controversy.

The petition states: "The court has cited no authorities bearing out its contention * * * that the evidence supported a finding that the alleged mash was fit for distillation"; the authorities cited in the footnote to § 224, Blakemore on Prohibition, 3d ed., should suffice.

The petition will be denied.

REHEARING DENIED.