The opinion
ON APPLICATION FOR REHEARING
Decided January 19, 1944.
BY THE COURT:
Submitted on application of defendant-appellant for rehearing. '
*584 The first ground is to the effect that the court was in error in the opinion in stating that,
“No affidavit appears in the files or the bill of exceptions as having been proffered either in this court or in the trial court.”
It may be, in view of the facts set forth in the application, that our statement was too broad in saying that no affidavit appears in the files. However, the test is whether the affidavit is properly before the Court as a part of the bill of exceptions. We do not understand that counsel so claims. We do not have the bill of exceptions before us but, if the affidavit which is made the subject matter of the application is a part of the record then, we will reconsider the question in the light of .this development. Otherwise, our reason for disposing of the assignment sought to be raised upon the affidavit is correct and sufficient.
The second ground of the application relates to the question sought to be urged respecting the denial to the defendant of his constitutional right of a public trial. The application but accentuates the fact to which we adverted in our opinion that the record does not exemplify the question sought to be urged by appellant.
The third ground relates to the failure of the prosecuting attorney to call a certain witness. The application, in this particular, again emphasizes the dominant fact common to most of the errors assigned, namely, that they may not be considered because they do not appear in proper form in the bill of exceptions.
We would direct counsel’s attention to the decision of this Court in Simes v The Dayton Xenia Railway Co., 24 Abs. 595 , which is a complete exposition of the principle presented on this record, namely, the manner, method and necessity of incorporating affidavits into the bill of exceptions if they are to be considered on review.
The application for rehearing will be denied unless it can be affirmatively shown that the affidavit which is appended to the application for rehearing is made a part of the bill of exceptions.
BARNES, P. J., HORNBECK and GEIGER, JJ„ concur.