On Rehearing.
In order to grant the earnest appeal of counsel for appellant in the application for a rehearing in this cause, it would be necessary for this court to enlarge its jurisdiction and without authority of law assume original jurisdiction of the matters involved. This, of course, we cannot do, as the jurisdiction of this court is appellate only, and tlie review of cases before us is limited to those matters upon which action or ruling at nisi prius was invoked and had. Such is the settled rule, on principle and in practice, by which this court is bound. Woodson v. State, 170 Ala. 87, 54 South. 191; Montgomery v. State, 17 Ala. App. 469, 472, 86 South. 132 (on rehearing); Ex parte Montgomery, 204 Ala. 389, 85 South. 785; McPherson v. State, 198 Ala. 5, 73 South. 387; Code 1907, § 6234. In other words it is the duty of an appellate court to search tlie record proper for error apparent thereon, and to deal with and review the court’s rulings to such questions in the bill of exceptions to which proper exceptions were reserved.
Counsel for appellant makes the following statement:"
*630“If the record fails to show that the motion for a new trial was overruled by the trial court, it is no fault of this appellant, and he should not be permitted to suffer a term in the penitentiary for the omission of another.”
This cause was submitted on brief in this court, and it was the duty of appellant, before the submission of the cause, to see that the transcript was properly prepared, and that the terms of the statute had been complied with. Prior to the passage and approval of the present statute (Acts 1915, p. 722), regulating appeals from a judgment of the trial court on a motion for new trial, a motion for a new trial in a criminal case was a matter to be determined by the trial court, and was entirely within its discretion, ¿nd the action of the court in overruling defendant’s motion for a new trial was not revisable. Cooper v. State, 88 Ala. 107, 7 South. 47; Suttles v. State, 15 Ala. App. 582, 74 South. 400; Smith v. State, 165 Ala. 50, 51 South. 610.
Under the statute, supra, ds stated in the original opinion, it is essential to the right to review the ruling pf the trial court on a motion for new trial that an exception should be reserved, and that this, with the evidence and the ruling of the trial court on the motion, should be incorporated in the bill of exceptions. Unless the question is presented in accordance with the express terms of the statute, the appellate courts of this state are without authority to review the action of the trial court. But, pretermitting all this, the facts adduced upon the trial of this defendant were in sharp conflict, and presented a jury question. It would appear, therefore, that, if the ruling of the court on the motion for a new trial had been properly presented, it could have availed the appellant nothing; for, in the first place, there was no sufficient ground of the motion to authorize or require its being granted, nor was there any testimony offered to sustain the motion, or any part thereof.
Application overruled.