
    AVERY v. STATE.
    (No. 4839.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.
    On Motion for Rehearing, Feb. 20, 1918.)
    1. Criminal Law <@=^1090(1) — Appeal—Absence op Statement and Bills of Exceptions — Affirmance.
    Where there is nothing in the motion for a new trial that can be considered in the absence of facts and bills of exception, the judgment will be affirmed.
    On Motion for Rehearing.
    2. Criminal Law <@=>1028 — Appeal—Issues Not Raised Below — Insanity.
    Insanity, or such mental condition as shows nonresponsibility for crime, first presented by affidavit on a motion for a rehearing, cannot be considered by the Court of Criminal Appeals, as it cannot act as a trial court upon such issues, and as appellant may have such issue tested by proper proceedings in the trial court.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Oscar Avery was convicted of burglary, and he appeals.
    Affirmed.
    Will S. Payne, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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.

On Motion for Rehearing.

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 case 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 affidavit of T. Murray Fisher, setting up, in substance, insanity, or rather such mental condition as shows nonresponsibility for crime, and asking a motion for rehearing based upon this affidavit. This matter cannot be considered by the court. This court cannot 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 cannot be 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.  