The opinion of the court was delivered by

The defendant was indicted for rape, convicted and sentenced to the extreme penalty.

On appeal, he relies solely on a motion for a new trial, in which the jury is' charged with a misapprehension of the facts, and the judge, with error in disregarding the affidavit of newly discovered evidence since the trial, which if adduced, would influence the jury to a new finding.

To the refusal of the judge to grant the new trial, a bill of exception was reserved.

In an elaborate opinion, the District Judge has taken pains to show that the grounds relied on for a new trial are untenable.

It has been repeatedly held that this court has no authority to consider the evidence adduced below, tending to establish the guilt or innocence of the defendant, and have power only to ascertain and determine, on proper showing, whether or not the proceedings were regularly instituted, carried on and consumniated.

It will not interfere with the discretion of the District Judge exercised in refusing a new trial on the grounds of newly discovered material evidence since the trial, anless in extreme cases, in which otherwise injustice would be done. Those features are not presented in the present instance.

*402The jury tries the accused on the charge against him, and this court tries the judge for his ruling but on questions of law only.

Judgment affirmed.