This case was affirmed at the last Austin term, 1899, and now comes before us on motion for rehearing. In the original opinion, in passing upon the motion for new trial based upon newly discovered evidence, we said: "We do not think there was any error in refusing to grant a new trial on this account, because the testimony desired would have simply served to impeach the prosecuting witness; and furthermore, there is no diligence shown to secure the testimony. Nor do we think the same was probably true, in the light of the record before us." We have again carefully reviewed this record. The affidavits which contain the newly discovered evidence cover about ten pages of the transcript. While a great deal of the same, as indicated in the original opinion, was impeaching testimony, yet, in the light of the record before us, we think some of said testimony was not of this character, and was calculated to bring about a different result, if the same had been introduced in behalf of appellant. In passing upon a similar question in Roy v. State, 24 Texas Criminal Appeals, 377, Judge Wilson, delivering the opinion of the court, used this language, to wit: "We are also of opinion that the court erred in not granting defendant a new trial. While the additional evidence disclosed by the affidavits accompanying said motion may not, in strictness, be regarded as newly discovered, still we think fairness and justice require that a new trial should have been awarded." We therefore conclude that the court erred in not granting a new trial, as *Page 9 contended by appellant, on the ground of newly discovered evidence. The motion for rehearing is accordingly granted and the judgment is reversed and the cause remanded.
Motion granted. Reversed and remanded.