¶1 The charge is rape upon a female child 13 years of. age. Judgment upon the verdict of guilty. The only error sought to be presented is the overrul ing of appellant’s motion for a new trial. Upon this assigned error, the giving of an instruction to the jury, alleged to be erroneous, is sought to be presented. Neither this instruction, nor any of the instructions, is in the record by a bill of exceptions. The instruction is not before the court for consideration. Smith v. State (1926), 198 Ind. 614, 154, N. E. 370; McNaught v. State (1924), 194 Ind. 209, 142 N. E. 418; Gillespie v. State (1924), 194 Ind. 154, 142 N. E. 220; Patton v. State (1922), 192 Ind. 632, 135 N. E. 795.
¶2 The new trial was also sought because of newly discovered evidence, which cause was supported by affidavits. The question is not presented on appeal because the affidavits are not brought into the record by a bill of exceptions. Alyea v. State (1926), 198 Ind. 364, 370, 371, 153 N. E. 775; Perfect v. State 1923), 197 Ind. 401, 409, 141 N. E. 52; Heath v. State (1910), 173 Ind. 296, 90 N. E. 310, 21 Ann. Cas. 1056; Graybeal v. State (1896), 145 Ind. 623, 44 N. E. 641.
¶3 There is no error presented for consideration by the appeal.
¶4 Judgment affirmed.