#### Sisson, Plaintiff in error, vs. The State, Defendant in error.

*May 27*

*June 21, 1890.*

*Criminal law: Writ of error: Record.*

On a writ of error in a criminal case, where no bill of exceptions has been settled and returned to this court, nothing can be considered except the sufficiency of the information and verdict and the judgment thereon.

ERROR to tbe Circuit Court for *Wvrmébago*County.

Tbe cause was submitted for the plaintiff in error on tbe brief of *Clarice & MoAuUffe,*and for tbe defendant in error on that of tbe *Attorney General*and *L. K.*Imse, Assistant Attorney General.

Tati OR, J.

This is a writ of error issued out of this ■court to tbe circuit court of Winnebago county, to bring up for review tbe judgment and proceedings in tbe case of tbe state of Wisconsin against tbe said *Henry Sisson.*Tbe return to the writ of error shows that an information was filed by tbe district attorney of said county in tbe circuit *274court of Winnebago county on December 21, 1885, charging the said *Hervry Sisson*with a felonious assault upon one Joseph Alger with intent to murder the said Alger, and in a second count charging the said Sisson, at the same time and place, with a felonious assault upon the said Alger with intent to do the said Alger great bodily harm.

There is no contention but that the information charges in proper form the *crime*— fo'st, of a felonious assault with intent to murder the said Alger; and, second, of a felonious assault with intent to do great bodily harm to the said Alger. The return also shows that the jury returned a verdict in the following language: “We find the defendant guilty of assault with intent to do great bodily harm, as charged in the second count in the information.” The record returned also shows that, on the petition of the defendant, certain witnesses were ordered to be summoned by the state to give testimony for the defendant on the trial in said circuit court. There also appear in said return certain instructions of the court to the jury in said action; also, the sentence and judgment of the court upon the verdict rendered by the jury, adjudging that the defendant be punished by imprisonment in the state prison at hard labor for the term of one year, and to solitary confinement during said term for the space of one day, the time of sentence to begin January 15, 1886. The record returned also contains the certificate of the warden of the state prison that the plaintiff in error was received into said prison under said sentence on the 16th day of January, 1886. The return further contains what purports to be the evidence taken before the justice of the peace on the preliminary examination before said justice, but none of the evidence produced upon his trial in the circuit court; and, finally, the return to the writ contains an affidavit made by John W. Hume on the 9th day of January, A. D. 1886, setting forth divers alleged irregularities in the proceedings *275on tbe trial, and irregularities in tbe conduct of tbe jury; and upon sucb affidavit and tbe minutes of said court a motion was made in writing on tbe same day to set aside tbe verdict and for a new trial, alleging various errors and. irregularities on tbe trial and in tbe proceedings in said action. Wbetber tbis motion was ever presented in fact to tbe court, or wbetber any decision was made by tbe court upon sucb motion, does not appear from tbe return to said writ.

There is no bill of exceptions attached to or made a part of tbe return to sucb writ of error, and none appears to have been made or settled and returned to tbis court. There is nothing, therefore, for tbis court to pass upon except tbe sufficiency of tbe information and tbe sufficiency of tbe verdict, and tbe judgment thereon. No complaint is made as to tbe sufficiency of tbe information, tbe verdict, or tbe judgment thereon. See *Chase v. State,*50 Wis. 510, 512. None of tbe questions raised and discussed by tbe learned counsel in their briefs in tbis action are properly before tbis court upon tbe record of tbe case as returned to tbis court. It is said in their brief that, after tbe jury were impaneled and sworn, tbe defendant, by bis counsel, asked that tbe district attorney be required to elect upon which count of tbe information be would proceed to trial, and that sucb motion was denied and exception taken. Tbe record, as returned to tbis court, does not disclose that any sucb motion was made on tbe trial, or that tbe court overruled sucb motion. Tbis court cannot, upon tbis bearing, pass upon tbe question wbetber tbe court should or should not have compelled tbe district attorney to elect upon which of tbe two counts be would proceed to trial against tbe defendant. As to Avbat tbe rule is in such cases, see *State v.*Fee, 19 Wis. 562, 565.

*By the*Court.— Tbe judgment of tbe circuit court is affirmed.