¶1 on rehearing.
¶2 April 7, 1915.
¶3 Appellant has filed quite a lengthy motion for' rehearing. For the first time therein he contends that the complaint and information are insufficient because they fail to allege that Geneva Hatch and her child “were without the necessaries of life or were without the means of obtaining them and that they were in want and were poverty stricken or were extremely needy and in a distressing condition,” claiming that the said pleadings wherein they alleged, following the language of the statute, that they were respectively “then and there in destitute and necessitous circumstances,” were insufficient. It is true, as claimed by appellant, that if the pleading was fatally defective in the particulars mentioned or any other in a material point, advantage could be taken of it, even in a motion for rehearing, but it is well settled in this State, as stated by Judge, White, “it will generally be sufficient if the indictment (or complaint and information) follow the exact words of the statute, and it is rarely ever safe to depart from them.” We think there can be no question but that the complaint and information in this case, following the language of the statute, was clearly sufficient and that it was not necessary to make the allegations claimed to be necessary by appellant quoted above. White’s Ann. C. C. P., see. 344.
¶4 Appellant also still contends that the evidence in this ease was wholly insufficient to sustain a conviction. We have carefully again considered the evidence in connection with appellant’s renewed attack by his motion for rehearing, and are still of the opinion that the evidence was amply sufficient to sustain the verdict. Appellant, in his motion, at *428 tacks the testimony of some of the witnesses in various particulars, and, in addition, attaches four ex parte affidavits made by persons since the decision of this ease and in his motion comments thereon in connection with the evidence adduced before the court and jury.
¶5 This is an appellate court, not a trial court. We are bound by what the record shows was testified to before the court and jury on the trial of the case and in no contingency are we authorized or permitted to consider ex parte affidavits for the first time filed in this court as to any evidence which was not before the lower court. In no contingency, even in the lower court, would such ex parte affidavits be admissible.
¶6 It may be that if these persons who now make affidavits had been before the court and testified, their testimony may have been material and it might have affected the result of the case; but, as stated, we, in no contingency, can consider such matters. Even some of the statements in these ex parte affidavits are of matters occurring long after even the trial of this case in the court below.
¶7 We think nothing is presented in the motion for rehearing which would áuthorize or require this court to reverse this case. There was no claim in the lower court, nor is there in this, that the purported testimony of these witnesses whose ex parte affidavits are attached, was newly discovered testimony in terms of law. There is nothing else in the motion requiring discussion. It is, therefore, overruled.
¶8 Overruled.