We have carefully examined the motion for rehearing by the appellant, and the able brief filed by his counsel in support thereof. It is true that in some cases we have been inclined to look with a somewhat greater degree of leniency upon grounds set up in motions for new trial on behalf of persons who rely upon the fact of insanity as a defense, but any extension of the rule in such cases could in fairness only apply when the newly discovered evidence desired, and upon which a new trial was sought, was some matter, — knowledge of which would appear to have been obtainable only from the accused, — it being reasonable that if he was insane he could not have communicated matters pertaining to his defense to his attorney as would have been the case had he been sane. When, however, the matter relied upon has reference to alleged newly discovered testimony of an expert, or a so-called alienist whose testimony is desired, and who has been discovered since the trial, and whose testimony the attorney for the accused seems desirous to have passed upon by the jury and not by the court, — there seems no need for attempted application of the rule referred to.
If this court should ever lay down a rule that the accused was entitled to a rehearing or a new trial of his case in order that each newly discovered alienist or expert might have the *Page 289 weight of his testimony passed upon by a jury, it is quite evident that we would speedily reach a condition in our practice that one new trial after another might be demanded because of the discovery of this new alienist or the other, and, we might add, one after the other. We have no desire and have never intended to lay down such a rule.
We think the testimony pro and con submitted to the jury amply sufficient to enable them to properly decide the question of whether the accused was of unsound mind, and that this having been decided by them adversely to the appellant, the trial court correctly refused a new trial.
Being of opinion the case was properly decided, the motion for rehearing is overruled.
Overruled.