#### Scott v. The State.

O32i~L AND Wi~xr~~ T~sTn~oNy-How mado of 9'eoo~d.-Neither oral or written testimony constitute any part of the record, miloss it is made s~ by order of the court, by agreement of the parties, by demurrer, by oyer by bill of exceptions or by spt~cial verdict.

Appeal from Pulaski Circuit (Jourt.

lION. JoH1~ W1wToai~, Circuit Judge.

13e7?ja?nin, Galla~q/ier, 1'Tewton ~` Ilempstecul, and how-am'l B. S. Ganit, for appellant.

Monfgome)71, Attorney General, for appellee.

MaCx~uuE, 0. J.

The only difference between this case and that of the State v. Henry et al., is that the counsel for the appellants, and the attorney general, have filed an agreement whereby this court is granted permission to consider the record as containing the following facts:

.F~i'at. "That the appel] ant sold liquor in quantities less than one quart, in the city of Little Rock, in the county of Pulaski, and State of Arkansas, and that he had not procured from the county court a license for the sale of the same."

Second. "That said record may a'so be consIdered as coutain~ ing the annexed certified copy of the order of the county court establishing said license, which was omitted from said transcript."

This agreement re'ates solely to the evidence adduced at the trial, and. is not an agreement to perfect the record., although it proposes to be such. Neither oral or written testimony stitute any part of the record, unless it is made so by order of the court, by agreement of the parties, by demurrer, by oyer, by bill of exc~ptions, or by special verdict." Lenox v. Pike, 2 *522 Ark. 214; Berry v. Singer, 10 Ark 491; Dillard v. Parker, 25 Ark. 507.

This record contains the finding of the indictment, the indictment, the waiver of arraignment, a plea of not guilty, the waiver of a jury and a consent to submit the cause to the court, sitting as a jury. The record then continues by saying, “aud the court, having heard the evidence adduced, and the argument of counsel, overrules the defendant’s demurrer and assesses a fine of twenty dollars against said defendant. It is therefore considered,” etc. To which ruling the defendant ■excepted and prayed an appeal to the Supreme Court.

It appears, from the closing portion of the record, that a demurrer was overruled, hut whether the demurrer related to the indictment, or to the evidence adduced at the trial, we have no means of ascertaining, as wo are unable to find a copy of the demurrer in the transcript; nor does it appear that a demurrer was filed, save, as is incidentally recited in the finding of the ■court. If this demurrer was actually filed audit related to the evidence, it would at once perform the office of a bill of exceptions, if properly framed; but in its absence, we are unable to tell what its mission was, if it ever had one. A demurrer to evidence must be to the whole evidence; whether this agreement, filed by the attorneys of the appellant and the attorney general, contains dll the evidence, we are not able to determine; nor does it so state. If we should consider this agreement as •containing all the evidence, this judgment would have tobe reversed, because it no where appears that the selling of the liquors without license, took place before the finding of the indictment. We are not at liberty to presume that the statement filed contains all the evidence,,where the effect would bo to procure a reversal of the judgment. If we were to hear this •cause upon an agreed statement of facts, or to try the case de novo, as seems to be the desire of counsel, grave questions might arise as to the validity of a judgment rendered, by this court, under such circumstances. We sit here to hear and determine causes of this character on appeal, or writ of error, *523and such would not be the functions of this court, if we heard it upon an agreed statement of facts. For the reasons given in the case of Henry et al. v. The State, the judgment will be affirmed.