Commonwealth v. Cookendorfer

Opinion of the Court by Judge Peters: It might be interesting,- and perhaps not uninstructive, to have a judicial determination of the question whether the Mulatto, Booth Allen was competent to'testify in the case; but unfortunately for those interested this court is precluded from the consideration, and determination of that question, .by the total failure of appellant to move for a new trial in the court below. In Humphreys vs. Walton, 2 Bush, 580, it is said by this court; on an issue and trial of a fact by a-jury a motion for a new trial is essential to correct the errors growing out of the evidence, or instructions before an appeal can be entertained by this court, and the same thing was decided in Detherage vs. Montgomery, 4 Bush 46. The failure therefore of appellant to move for a new trial - in the court below to have the error complained of corrected deprives this court of the opportunity of expressing its views on the very interesting question of evidence presented in the -bill of exceptions. Wherefore the judgment is affirmed.