Appellant in her motion for rehearing earnestly insists that we erred in not granting her a new trial on account of the alleged newly discovered testimony of Campbell and Story, and says, among other things, "With all due deference to the justice who wrote the opinion, we state that nowhere in the motion for new trial, nor in appellant's testimony, did she state that `the men drank whisky while at her house and she reprimanded them.'" Appellant's motion for a new trial is sworn to by her on the 28th day of September, 1914, before L.N. Cross, county clerk, and without copying the entire fourth ground in the motion for a new trial we take the following excerpts therefrom: "Witness will further testify that there was no beer served or sold in the parlor at Frankie Stewart's to Foulkes or anyone else; that from the time they arrived there until they left they remained in the parlor, except a short time they were out in the hall when the witness Foulkes gave to each of the parties above named some whisky; thatFrankie Stewart (appellant) reprimanded them for drinking." Again she states she expects to prove on another trial: "That the witness Foulkes had some whisky and gave part of it to the witness and to Walter Story, drank some himself and gave some to another gentleman with him in the hall and that Frankie Stewart (appellant) told them she did not want them drinking at her place."
These are literal excerpts from the fourth ground of her motion for new trial and which she swears is true, and appellant's counsel must not have read it recently, or he would not make an allegation of the above character in the motion for rehearing. The alleged newly discovered *Page 56 evidence must appear to be in fact newly discovered, and such as could not by a reasonable exercise of diligence have been discovered in time for the trial. Butts v. State, 35 Tex. Crim. 364, and cases cited in original opinion.
It is hard for one to conceive that Story and Campbell knew that appellant "reprimanded them for drinking whisky in her house," and appellant did not know that she gave the reprimand.
The motion for rehearing is overruled.
Overruled.