That there is nothing more for this Court to review under the circumstances seems to be established by Wilhelm v. Hadley, 218 Md. 152, 159; Brawner v. Hooper, 151 Md. 579; Lynch v. Mayor, etc., of Baltimore, 169 Md. 623. See also Lusby v. State, 217 Md. 191, 195-197; Martin G. Imbach, Inc. v. Tate, 203 Md. 348, 360; Luray v. State, 157 Md. 635, 638; Neusbaum v. State, 156 Md. 149 and Annapolis Gas, etc., Co. v. Fredericks, 112 Md. 449, 458. Compare Nelson v. Seiler, 154 Md. 63; and Pugaczewska v. Maszko, 163 Md. 355, where there were requests for rulings and rulings were made. Recognizing that this Court has almost unvaryingly left the granting or denying of a new trial to the sound discretion of the trial court, the appellants, in their final contention, urge that there was an abuse of discretion in the denying of their motion for a new trial in that the court's consideration of the motion in reality amounted to a failure to exercise discretion at all, as in Washington, Baltimore and Annapolis Electric Railroad Co. v. Kimmey, 141 Md. 243, where the trial court refused to consider evidence offered by the applicant in support of his motion and so, in effect, refused even to entertain the motion.
We have, therefore, no ruling of the lower court before us upon which we can base our decision. Luray v. State, 157 Md. 635, 147 A. 599; Niemoth v. State, 160 Md. 544, 154 A. 66. Rules 9 and 17 of our Rules and Regulations Respecting Appeals. We do not think the necessity of having a ruling by the lower court was disregarded in the case of Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734, at page 741, cited by appellant as authority for us to pass upon the question without regard to the mode of its presentation.
As the bank statement was admitted, there was no error in this line of argument. It must be further noted that the exception was taken to the argument of the State's Attorney. If the accused was injured by this argument, the complaint should have been made to the trial court and a request made for such relief necessary to insure a fair and impartial trial. If such relief was refused, he should have then excepted to the action of the trial court. As the record now stands, the question raised by the fourth exception is not before us for review. Luray v. State, 157 Md. 635, 638, 147 A. 599; Niemoth v. State, 160 Md. 544, 558, 154 A. 66. The motion in arrest of judgment, the motion to strike out the verdict, and the motion to strike out judgment and sentence all contained the same reasons, which were as follows:
The record was received by the clerk of this court on September 14th, 1937. That date was within the period of three months which would have been allowable for the transmission of the record if a duly signed bill of exceptions had been included. Lee v. State, 163 Md. 56, 60, 161 A. 284; Luray v. State, 157 Md. 635, 640, 147 A. 599; Brill v. State, 144 Md. 68, 124 A. 414. Under the special conditions shown by this record, we would not be justified in dismissing the appeal because the transcript of the record was not forwarded to this court within the time limited by the rule, which applies in terms to cases in which "there are no bills of exceptions." A further argument in support of the demurrer was that the indictment was not sufficiently definite as to the time of the alleged offense, but, as time was not of its essence, this objection is not valid in view of section 533 [553] of article 27 of the Code, and of the decision in Allen v. State, 128 Md. 265, 97 A. 362.
A practice of the court was in question, and the certification by the court of the facts of that practice seems closely analogous to certification of a rule of court. There is no departure from settled practice in it, and the time limit for bill of exceptions does not apply. The limit upon bringing up the facts in this manner is to be found only in that fixed for bringing the record to the court. Reference was made in the oral argument to the requirement of Rule 25 of this court that on appeals in criminal cases the records shall be transmitted forthwith after the appeals are taken; but the decisions in the cases of Luray v. State, 157 Md. 635, 640, 147 A. 599, and Brill v. State, 144 Md. 68, 124 A. 414, applying to appeals in criminal cases a clause of the statute, Code, art. 5, sec. 6, which allows three months for transmission of records on appeals from courts of law, prevent dismissal of the present appeal because of delay in transmitting the record. The court must entertain the appeal, and review the rulings objected to.
But, the objection being delayed as it was, no such opportunity was afforded the court. Luray v. State, 157 Md. 635, 147 A. 599. As we find no prejudicial errors in any of the rulings of the court, the judgment appealed from will be affirmed, with costs.
Cases falling under it are not within the domain of judicial discretion, but they are governed by its imperative provisions." Steiner v. Harding, 88 Md. 343, 41 A. 799, 800; Brill v. State, 144 Md. 68, 124 A. 414; Luray v. State, 157 Md. 635, 147 A. 599. There would be no justification for the postponement requested for filing an additional record for the second appeal, if that appeal were well taken, for, there being no bill of exceptions, there is no additional record to wait for. And we must hold that appeal not well taken, but one that, being a mere repetition of the previous appeal, must also be dismissed.
No action by the court on that subject was requested. In Luray v. State, 157 Md. 635, 147 A. 599, 601, exceptions were noted to the action of the state's attorney in making certain remarks. In the opinion by Judge Offutt, it is said: "It appears from what has been stated that the exceptions were not taken to any ruling of the trial court, but to the `action' of the state's attorney.