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 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 *Page 81 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 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.
Overruled.