ON MOTION FOR REHEARING.
In the motion for rehearing filed in this case, it is alleged that this court overlooked certain recitals in the bill of exceptions and certain decisions of this court and of the Supreme Court. Neither the recitals nor the decisions were overlooked. This court can review such questions only as the record shows were made and passed upon by the trial court. In this case the record shows that a written application was made for the direction of a verdict of not guilty. The court had no right to direct a verdict of not guilty, even though everything had been done necessary to the discharge of the defendant under his demand for trial. This court treated the application as *10one for a discharge of the defendant. The trial judge passed upon the motion as made and the evidence introduced thereon, and, as said in the original opinion, “neither the motion nor the evidence introduced on the trial thereof showed that at the term when the demand was allowed and at the next-succeeding term there were juries impaneled and qualified to try the accused.” The proposition urged in the motion for a rehearing was not presented to -the trial judge, but appears.for the first time in the bill,of exceptions; and the principle is settled that a question neither raised nor passed upon in the lower court can not be considered by a reviewing court. Mewborn v. Weitzer, 15 Ga. App. 668 (2) (84 S. E. 141); Contitinental Aid Assoc. v. Hand, 22 Ga. App. 726 (97 S. E. 206), and cit.; Patterson v. Bank of Alapha, 148 Ga. 356, 357 (96 S. E. 863; Bolton v. City of Newnan, 147 Ga. 400 (94 S. E. 236).
In addition to the above, the assignment of error in the bill of exceptions is incomplete. While it is alleged that at the September and December terms, 1918, “juries were present and qualified to try said defendant, and defendant was not given a trial,” it does not appear that there was a jury present and qualified to try the case when the demand was made. Hall v. State, 21 Ga. 148 (2). Nor does it appear that the case was not continued by the consent, or the failure to try was not due to some voluntary act of the accused. “A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on' his part showing affirmatively that he consented to passing the case until a subsequent term.” Walker v. State, 89 Ga. 482 (15 S. E. 553). See also Flagg v. State, 11 Ga. App. 37 (1), 38 (1, 2) (74 S. E. 562), and cit.
Rehearing denied.
Broyles, C. J., and Luke, J., concur.