Opinion by

The indictment in this case contains two counts, one for the alleged rape of Lil Jones, a child under twelve years of age, and the other for carnally knowing her. Defendant was only convicted of the lesser offense, and hence, granting that his motion to compel the commonwealth to elect upon which charge it would proceed should have been sustained, the appellant was not prejudiced by the refusal to do so.

The alleged newly discovered evidence, which formed one of the grounds for a new trial, could have been discovered by the use of proper diligence. It related to the appellant’s diseased condition, and the witness by whom it is claimed it would have the proof was the appellant’s attending physician and had been introduced as a witness by the commonwealth upon the trial upon another question.

Besides the action of the lower court in overruling a motion for *850a new trial is not subject to exception and can1 not be ground for a reversal by this court.

The jury were properly instructed and the judgment below is affirmed.

Judgment affirmed.