¶1The opinion of the Court was delivered by
¶2The defendant was convicted of shooting with intent to commit murder, and was sentenced to four years imprisonment at hard labor, and from this sentence appeals.
¶3*1591. We find in tlie record a motion for a new trial. Besides the averment that the vei'dict of the jury was contrary to the law and evidence, the motion sets out. the incompetency of the jury by reason of the term of this court at which the accused was tried being a final term and not a jury term ; certain irregularities are charged in the orders of the judge calling the term and want of proper notice, etc.
¶4This motion was overruled. There was a bill of exceptions tallen to this ruling.
¶5Under the earlier decisions touching the constitutional limitations confining the jurisdiction of tlie court to questions of law only, it was held that this Court was without power to review matters of fact appearing or introduced upon a motion for a new trial.
¶6The present Court has departed from that rule to the extent, that where the motion presents mixed questions of law and fact, and a bill of exceptions has been retained to the overruling of the motion, and the evidence offered on the trial of the motion is embodied in the bill or annexed thereto, we would consider and determine it, but that in the absence of such conditions, we would not and could not do so under ourlimited powers. State vs. Redd, 32 A. 819; State vs. Nelson, Ib. 842; State vs. Ross, Ib. 854; State vs. Hudson, Ib. 1052. To this rule thus announced, we shall inflexibly adhere. This disposes of the motion for a new trial.
¶72. There is also a motion in arrest of judgment, based upon the identical grounds contained in the motion for a new trial. Inasmuch as the principle is elementary, that such a motion must be founded on some substantial defect in the indictment or in the proceedings of the prosecution under it, patent on the face of the record; it is evident that this motion in arrest is also excluded from our consideration. Whart. on Crim. Law, sec. 4043; 15 A. 185; 30 A. 91; 32 A. 526.
¶8Nor can counsel alter or evade the rule by filing in this Court an assignment of errors, dependent entirely for its support on evidence— real and documentary — offered on the motion for a new trial, and as stated, not embodied in, attached to or accompanied by a bill of exceptions.
¶9Unless the proceeding- of the lower and the issues raised thereby are properly presented to this Court, we are powerless to grant relief, or to consider even the arguments and reasons urged therefor.
¶103. There was a second or supplemental motion for a new trial, based upon alleged newly discovered evidence.
¶11In the absence of an affidavit of tlie witness designated in the motion and annexed thereto, confirming or supporting the allegations thereof, *160and considering- too tlie pendency of tlie prosecution for months before the trial, and the fact stated by the district attorney in his brief, and not denied, that the witness lived in the same town with the accused, and had been summoned by the State, and that her name appeared on the back of the indictment as such witness; we must conclude that the discretion of the trial judge was soundly exercised in refusing the motion.
¶12Judgment affirmed.