Appellant insists that the opinion on rehearing delivered January 28th, 1931, was the first on the merits of the case and that under such circumstances he should be permitted to file a second motion for rehearing, pointing out what he conceives to be errors in disposing of his appeal. Under the circumstances we have carefully examined his second motion and find he is correct in assuming that in our original opinion we did overlook process attached to the application for continuance for the witness Dr. Phillips, which was issued on the 11th day of February, 1929, at the instance of appellant, and served upon the witness on the 12th day of February, 1929. This might have some bearing on the question of diligence. While an expression in our opinion of date January 28th might be construed as questioning the diligence as to this witness, the opinion was not based on that point, but turned upon the application of the principle stated by Mr. Branch in his Ann. Tex. P. C., page 188, Sec 319, as follows:
"It is not in every case, however, where the absent testimony is material and probably true, that the Appellate Court will revise the ruling of the trial judge in denying a continuance and a new trial to defendant. It is only in a case where, from the evidence adduced on the trial, the Appellate Court is impressed with the conviction, not merely that the defendant might possibly have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony bad been before the jury a verdict more favorable to the defendant would have resulted." *Page 31
Recognizing that our court has been more liberal in applying the rule of "diligence" to procure testimony upon the issue of insanity than in other respects, it was not the intention of those cases, nor do we think their effect such as to deprive the trial court of discretion to determine upon motion for new trial whether in view of all the evidence heard upon the trial it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to appellant would have resulted. We have carefully re-examined all the evidence. The confession of appellant made a few days after the offense was committed went into many details, and described minutely his acts both before and after the crime was committed. These details were shown to be true by other evidence. They relate to matters such as one whose mind was impaired would likely not have remembered. It is further shown from the face of the confession itself that appellant knew the right and wrong of the crime, not only in its contemplation, but in its execution, and in an effort to hide the perpetrators by secreting the instruments with which it was effected. Those people with whom he lived, slept and ate, and those who associated with him daily, gave evidence convincing to any jury that appellant was not insane in contemplation of law at the time the offense was committed. It would extend this opinion to unnecessary length to set out in detail all the evidence, but from it we are confirmed in our view that the learned trial judge was well within his discretion in refusing a new trial. It does not occur to us that it was at all reasonably probable that the absent testimony, if it had been before the jury, would have brought about a more favorable verdict.
The second motion for rehearing is denied.
Overruled.