LATTIMORE, JUDGE.
Conviction for murder; punishment, fifteen years in the penitentiary.
Appellant brings forward six bills of exception,, all of which have been examined. Only two of said bills are briefed by counsel representing appellant on this appeal. Appellant was living in a house in Amarillo, Texas, in which also the wife of deceased was staying working for appellant as housekeeper. Said wife had been separated from deceased for a year and a half. Deceased with their five small children lived near Clarendon in Donley county. Mrs. Eubanks and her two children were living in the house with deceased. A few days before this homicide appellant took the wife of deceased down to visit her children. Deceased was not at home. According to Mrs. Eu-banks, there was a good deal of cursing and profanity indulged in by appellant and the wife of deceased, in the presence of said children. Mrs. Eubanks said she remonstrated with them. Upon the return home of deceased she told him of said conduct. She testified that on the day of this killing deceased took a load of produce to Amarillo and engaged in peddling it out. She went with him and spent the day at his mother’s home. Late that afternoon deceased took her and some others in his truck
and went by the home of appellant. Here he seems to" have gone to the door and asked to see appellant, and when the latter came out deceased reproved him for his cursing in the presence of the children and warned him not to do it again. According to practically all' the testimony, appellant turned and went into the house and got a pistol. Deceased had turned back, and when appellant got to the door deceased had reached a point near the car. Appellant fired at deceased five times, killing him. Appellant took the position upon this trial, — and apparently made statements in accordance with same at the time of the killing, — that deceased made movements as though to draw a pistol, and that appellant believed he had one, and had gotten his friends and come by there for the purpose of assaulting and perhaps killing appellant.
Appellant was defended originally as well as later by reputable lawyers who have been practicing attorneys at the Amarillo bar for many years. He was convicted on October 2, 1931, and said attorneys filed a motion for new trial on October 3rd. On October 13th appellant, through entirely different counsel, filed an amended motion for new trial setting up for the first time that since the trial new evidence had been discovered showing that he was insane at the time of this killing, and had been so for many years. Seven affidavits were attached to said motion, four of which were sworn to before appellant’s present attorney as notary. The mother, brother, sister and a nephew of appellant by marriage, made four of said affidavits. It is shown that the mother and said nephew were present at the trial, were sworn as defense witnesses, but not used. Three other affidavits were appended, including one by a doctor shown by testimony to be an eye, ear, throat and nose specialist. Said doctor as well as all the makers of the affidavits, save the brother and sister, lived in the city of the trial, and no reason is shown or disclosed for not having them present. When the motion was presented, in addition to the affidavits referred to, the doctor mentioned was examined orally for the defense, as was also another doctor who had testified for the defense on the trial of the case, and is shown to have then said nothing regarding appellant’s insanity. In fact, said last mentioned doctor stated on the hearing of the motion that when he examined appellant prior to the trial it did not occur to him that he was insane. The state introduced upon this hearing the city physician of Amarillo, a practitioner of five years standing, who testified that he gave appellant an examination and applied the usual tests, but found nothing indicating insanity, and that in his opinion appellant was sane. The bill of excep
tion bringing forward this testimony, including the affidavits, is qualified by the trial court, — whose discretion in refusing the motion for new trial must appear to this court to have been abused. As explanatory, the court states in said qualification that neither the appearance, conduct nor the testimony of appellant on the trial indicated insanity; that appellant promptly and coherently answered the questions propounded and acted like an ordinary witness. The trial judge further refers to the fact that not until the amended motion for new trial was there .any suggestion of insanity. In his qualification the court calls attention to the character of counsel originally representing appellant as diligent and able attorneys.
The fact that the mother and nephew of appellant were witnesses and present at the trial, and that one of the two expert witnesses, whose affidavit and testimony were offered, testified on the trial of appellant that he had examined him before, and he had gone no further in his testimony, as given on the trial, than to say that appellant’s condition “would tend to make him cross and irritable”; also that all of said affiants, save appellant’s brother and sister, lived in the .city where the homicide occurred, and where appellant and his counsel lived and .the trial took place, leads us to conclude that there appears no abuse of the court’s discretion in the refusal of the motion for new trial. Half a hundred cases are cited in Vernon’s Annotated C. C. P., art. 753, among the notes in subdivision 6, supporting the proposition that the accused who seeks a new trial on the ground of newly discovered evidence, must satisfy the trial court in regard to each of four essentials set out. By statutory enactment such an application is governed by the .same rules as in civil cases, and the action of the trial court will not be revised save it be apparent that the court’s discretion has been abused to the hurt of the accused.
Neither of appellant’s counsel who represented him in the preparation and trial of this case, made affidavit or testified on the hearing of the motion. We regard this as a circumstance entitled to weight and great consideration on the part of the trial court, who himself must have been interested in finding out what had come to the knowledge of said attorneys in the preparation and trial of the case in conversations with the witnesses who were present at the trial. In Burton v. State, 33 Texas Crim. Rep., 138, this court said that evidence which could have been known to counsel for the accused before the trial, is not newly discovered. In many cases it has been held that when it appears that the witnesses who propose to give the testimony claimed as newly discovered, had been sub
poenaed or were present at the trial, even though hot used, their testimony will not be deemed newly discovered. See Halliburton v. State, 34 Texas Crim. Rep., 410; Powell v. State, 36 Texas Crim. Rep., 377; Stewart v. State, 76 Texas Crim. Rep., 54; Jackson v. State, 81 Texas Crim. Rep., 601; Bowman v. State, 98 Texas Crim. Rep., 378. In Cooper v. State, 58 Texas Crim. Rep., 598, this court held that when witnesses are present and the record discloses that no effort was made to ascertain their knowledge of matters alleged to be newly discovered, a new trial would be properly denied. See Hill v. State, 96 Texas Crim. Rep., 364; Behrens v. State, 99 Texas Crim. Rep., 56. In Williams v. State, 83 Texas Crim.
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LATTIMORE, JUDGE.
Conviction for murder; punishment, fifteen years in the penitentiary.
Appellant brings forward six bills of exception,, all of which have been examined. Only two of said bills are briefed by counsel representing appellant on this appeal. Appellant was living in a house in Amarillo, Texas, in which also the wife of deceased was staying working for appellant as housekeeper. Said wife had been separated from deceased for a year and a half. Deceased with their five small children lived near Clarendon in Donley county. Mrs. Eubanks and her two children were living in the house with deceased. A few days before this homicide appellant took the wife of deceased down to visit her children. Deceased was not at home. According to Mrs. Eu-banks, there was a good deal of cursing and profanity indulged in by appellant and the wife of deceased, in the presence of said children. Mrs. Eubanks said she remonstrated with them. Upon the return home of deceased she told him of said conduct. She testified that on the day of this killing deceased took a load of produce to Amarillo and engaged in peddling it out. She went with him and spent the day at his mother’s home. Late that afternoon deceased took her and some others in his truck
and went by the home of appellant. Here he seems to" have gone to the door and asked to see appellant, and when the latter came out deceased reproved him for his cursing in the presence of the children and warned him not to do it again. According to practically all' the testimony, appellant turned and went into the house and got a pistol. Deceased had turned back, and when appellant got to the door deceased had reached a point near the car. Appellant fired at deceased five times, killing him. Appellant took the position upon this trial, — and apparently made statements in accordance with same at the time of the killing, — that deceased made movements as though to draw a pistol, and that appellant believed he had one, and had gotten his friends and come by there for the purpose of assaulting and perhaps killing appellant.
Appellant was defended originally as well as later by reputable lawyers who have been practicing attorneys at the Amarillo bar for many years. He was convicted on October 2, 1931, and said attorneys filed a motion for new trial on October 3rd. On October 13th appellant, through entirely different counsel, filed an amended motion for new trial setting up for the first time that since the trial new evidence had been discovered showing that he was insane at the time of this killing, and had been so for many years. Seven affidavits were attached to said motion, four of which were sworn to before appellant’s present attorney as notary. The mother, brother, sister and a nephew of appellant by marriage, made four of said affidavits. It is shown that the mother and said nephew were present at the trial, were sworn as defense witnesses, but not used. Three other affidavits were appended, including one by a doctor shown by testimony to be an eye, ear, throat and nose specialist. Said doctor as well as all the makers of the affidavits, save the brother and sister, lived in the city of the trial, and no reason is shown or disclosed for not having them present. When the motion was presented, in addition to the affidavits referred to, the doctor mentioned was examined orally for the defense, as was also another doctor who had testified for the defense on the trial of the case, and is shown to have then said nothing regarding appellant’s insanity. In fact, said last mentioned doctor stated on the hearing of the motion that when he examined appellant prior to the trial it did not occur to him that he was insane. The state introduced upon this hearing the city physician of Amarillo, a practitioner of five years standing, who testified that he gave appellant an examination and applied the usual tests, but found nothing indicating insanity, and that in his opinion appellant was sane. The bill of excep
tion bringing forward this testimony, including the affidavits, is qualified by the trial court, — whose discretion in refusing the motion for new trial must appear to this court to have been abused. As explanatory, the court states in said qualification that neither the appearance, conduct nor the testimony of appellant on the trial indicated insanity; that appellant promptly and coherently answered the questions propounded and acted like an ordinary witness. The trial judge further refers to the fact that not until the amended motion for new trial was there .any suggestion of insanity. In his qualification the court calls attention to the character of counsel originally representing appellant as diligent and able attorneys.
The fact that the mother and nephew of appellant were witnesses and present at the trial, and that one of the two expert witnesses, whose affidavit and testimony were offered, testified on the trial of appellant that he had examined him before, and he had gone no further in his testimony, as given on the trial, than to say that appellant’s condition “would tend to make him cross and irritable”; also that all of said affiants, save appellant’s brother and sister, lived in the .city where the homicide occurred, and where appellant and his counsel lived and .the trial took place, leads us to conclude that there appears no abuse of the court’s discretion in the refusal of the motion for new trial. Half a hundred cases are cited in Vernon’s Annotated C. C. P., art. 753, among the notes in subdivision 6, supporting the proposition that the accused who seeks a new trial on the ground of newly discovered evidence, must satisfy the trial court in regard to each of four essentials set out. By statutory enactment such an application is governed by the .same rules as in civil cases, and the action of the trial court will not be revised save it be apparent that the court’s discretion has been abused to the hurt of the accused.
Neither of appellant’s counsel who represented him in the preparation and trial of this case, made affidavit or testified on the hearing of the motion. We regard this as a circumstance entitled to weight and great consideration on the part of the trial court, who himself must have been interested in finding out what had come to the knowledge of said attorneys in the preparation and trial of the case in conversations with the witnesses who were present at the trial. In Burton v. State, 33 Texas Crim. Rep., 138, this court said that evidence which could have been known to counsel for the accused before the trial, is not newly discovered. In many cases it has been held that when it appears that the witnesses who propose to give the testimony claimed as newly discovered, had been sub
poenaed or were present at the trial, even though hot used, their testimony will not be deemed newly discovered. See Halliburton v. State, 34 Texas Crim. Rep., 410; Powell v. State, 36 Texas Crim. Rep., 377; Stewart v. State, 76 Texas Crim. Rep., 54; Jackson v. State, 81 Texas Crim. Rep., 601; Bowman v. State, 98 Texas Crim. Rep., 378. In Cooper v. State, 58 Texas Crim. Rep., 598, this court held that when witnesses are present and the record discloses that no effort was made to ascertain their knowledge of matters alleged to be newly discovered, a new trial would be properly denied. See Hill v. State, 96 Texas Crim. Rep., 364; Behrens v. State, 99 Texas Crim. Rep., 56. In Williams v. State, 83 Texas Crim. Rep., 26, we held that when all the witnesses to newly discovered evidence were accessible, and their testimony could have been obtained on the trial, a new trial was properly refused.
It might be illuminating to set out all the testimony given by appellant on this trial which is in the record before us as demonstrating his intelligence, mentality, comprehension of the facts and issues involved, etc. So also it might make to some degree evident that the trial court was warranted in his conclusion in refusing the new trial, to set out the testimony of the two expert witnesses offered by appellant. We do quote from the testimony of the doctor who admitted that he had testified on the main trial of this appellant, as follows:
“It didn’t occur to me at the time I examined him that he was insane, but conditions that existed and histories I have checked up lead me to believe that. Do you want me to mention one?
“Q. Anything you want to say. A. You realize that this is an ex-service man, and he has been drawing compensation from the Government. My understanding is that he has gone from one regional office jurisdiction to another, not staying at one place long enough to have his case adjudicated and get it settled, don’t you see? That is the history I get out of it.”
We quote from the testimony of the eye, ear, throat and nose specialist as given orally before the court upon cross-examination by state’s counsel:
“Q. Did you ever suggest to any of his friends that he should be in the asylum? A. No, but I suggested to him that he had better get in a hospital and get treated; that any violent exercise on his part, or any undue excitement or commotion, might unsettle his mind.
“Q. His mind was already unsettled wasn’t it? A. Yes, but there are as many forms of insanity as there are human beings.
“Q. Now we are getting pretty close together. In other words, there is lots of different types of insanity? A. Certainly, an emotional insanity may run in a status quo of apparent sanity only to become dethroned in a short space" of time for the reason the moral fibre is not sufficient to retain its stability.”
We set these out in order that the correctness of the trial court’s conclusion that testimony such as this put before the jury would not be apt to produce a different result. The doctor who testified on the trial and made no reference to any insanity on the part of appellant, mentions in the above quotation as his reasons for now concluding appellant insane, that he has learned that he went from one regional office to another, not staying at any place long enough to have his case adjudicated, apparently as supporting his conclusion that appellant is insane. We quote from the testimony of the other physician as showing why the trial court was justified in not believing that testimony such as this would be apt to greatly influence the jury. Just what the witness meant by emotional insanity, or a status quo of apparent sanity, or the moral fibre being without stability, is not quite clear from a legal standpoint, but does serve to illustrate the ease with which erroneus conclusions may be reached regarding that character of insanity necessary of proof in order to evade the consequences of crime.
We think there is nothing in appellant’s objection to the testimony of the city physician given upon the hearing of the motion for new trial, objected to on the ground that the truth or falsity of the proposition of insanity vel non, was not for the trial court. One of the issues before the trial court and upon which appellant assumed the burden of satisfying said court, was that the testimony offered would likely bring about a different result. We think the court not without authority to hear the testimony of said city physician.
We recognize that in cases where, the alleged newly discovered evidence is for the purpose of showing insanity, the rule as to the effect of the prior knowledge of the accused of such testimony, is held not applicable, — and we have purposely avoided announcing any adverse holding herein based on the proposition that appellant, himself must have known all the things involved in said newly discovered testimony. We have no quarrel with the cases cited by appellant in his brief, and think each of them correct on the facts before the court, but we have here no case parallel with any of them. There is not even any dispute of the fact that at least three of the witnesses proffering newly discovered evidence, were present at the trial.
The others were interested relatives or friends necessarily cognizant of the fact that the trial was being had as well as the facts now set out in their affidavits. Insanity as a defense is no new discovery, but is one of the best understood defenses. Relatives and friends of this appellant were not ignorant or uninformed. His counsel were able and versed in the law.
Finding ourselves unable to conclude that the discretion of th trial court in the refusal of the motion for hew trial has been in any way abused, the judgment will be affirmed.
Affirmed.