
    Oscar Avery v. The State.
    No. 4839.
    Decided January 23, 1918.
    Rehearing denied February 20, 1918.
    -Affidavit—Motion for New Trial—Practice on Appeal—Insanity.
    In the absence of bills of exception and statement of facts an affidavit -alleging defendant’s insanity can not be considered by this court. Besides, appellant has his remedy in the trial court.
    Appeal from the Criminal District Court of Dallas. Tried below before the Hon. Eobt. B. Seay.
    Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    
      Will S. Paine, for appellant.
    
      E. B. Hendricks, Assistant Attorney General, for the State.
   DAVIDSON, Presiding Judge.

Under a conviction for burglary appellant prosecutes an appeal.

The record is before us without statement of facts or bill of exceptions. There being nothing in the motion "for new trial that can be ■considered in the absence of the facts and bills of exception, the judgment will be affirmed.

Affirmed.

ON REHEARING.

February 20, 1918.

DAVIDSON, Presiding Judge.

On a former day of the term the judgment herein was affirmed, the record containing neither a statement of facts nor bill of exceptions. Appellant has filed a motion for rehearing in which his attorney states appellant was not represented by counsel, and his ease was not, therefore, fairly presented to the court; that he could show that the mind of appellant was in such condition he was not responsible. Attached to his motion is the offidavit of T. Murray Fisher setting up, in substance, insanity, or rather such mental-condition as shows non-responsibility for crime, and asking a motion for rehearing based upon this affidavit. This matter can not be considered by the court. This court can not act as a trial court upon issues of insanity, or issues not raised by the record. If as a matter of fact appellant is insane, the law provides how that issue may be tried. ' It can not ne tried as an independent new issue in the appellate court. If appellant desires to make it appear that he is insane he may file proper proceedings in the trial court and have the issue there tested. It presents no reason why it should be taken into consideration here on motion for rehearing as it is presented.

The motion for rehearing will, therefore, be overruled.

Overruled.  