It is claimed that one of the jurors who rendered the verdict against appellant was at the time insane, and therefore an incompetent juror, and that in consequence of such insanity the verdict of the jury is void.
It appears from the motion that the knowledge of this alleged insanity of the juror was not possessed by appellant at the time of the trial and came to him after the term of the court at which he was tried had adjourned. From this it is apparent that the matter was not raised in the court below and is not raised here by anything upon the record of the trial in the court below. Consideration of it would involve an inquiry by this court into the question of fact and its determination from evidence adduced of the sanity or insanity of the juror. This is not within the province of this court on appeal. It is confined to the record made in the court below in determining whether or not a legal trial was had. The judgment before this court is one which in the state of the record is presumed on appeal to have been based on the verdict rendered by a lawful jury. Relief against a void judgment upon matters not contained in the record on appeal, must be sought in the District Court which is equipped to determine the facts, and from its judgment upon such proceeding appeal will lie to this court.
The other questions raised in the motion for rehearing are fully considered and discussed in the original opinion. The motion for rehearing is overruled.
Overruled.