Upon the hearing of the motion for new trial there was before the court the affidavits of Weatherford and Ropier. In each of these affidavits there were imputed to the witness Crawley statements made out of court going to show that before he was selected as a juror, he had expressed himself as being prejudiced against the appellant and his case. On the hearing of the motion for new trial, Crawley testified and denied making the statements imputed to him by Ropier, and as to the statement imputed by Weatherford, he said that he did not remember that he had made it. Upon the hearing, Weatherford testified and reiterated his statement in the affidavit. Other witnesses who claimed to have been present on the occasion of the making of the statement in Weatherford's affidavit corroborated his testimony. We have failed to find in the record any testimony discrediting Weatherford or characterizing him as other than a disinterested witness. If Crawley had denied in his testimony that he had made the statement to Weatherford, the conflict of evidence would have been one which was within the discretion of the trial court to decide either way. Crawley's failure to deny it when he had an opportunity to do so, in a manner supports Weatherford's statement. In an inquiry of this kind the law vests in the trial judge the discretion to determine the issues upon which the evidence is conflicting. It is conceived that it may disregard testimony of witnesses who are interested or impeached. Neither is the court bound to accept as true the testimony of a witness which is intrinsically improbable. In fact, it has broad discretion in determining the truth or falsity of an averment in the motion for new trial. We do not understand, however, that the discretion extends so far as to permit the disregard of the testimony of a disinterested and uncontradicated witness unless there is some fact or circumstance upon which such action may be founded.
In the present case, as indicated in the original opinion, the appellant supported his motion for a change of venue, based upon the ground of alleged prejudice, by a very strong array of facts and testimony. The county in which the trial took place and in which the offense was charged to have been committed was a small one, having only some 1200 qualified jurors. Appellant bore a bad reputation, had been accused of other offenses, and in one instance had been found guilty of a felony, the jury according him a suspended sentence. These matters and the present offense had been widely discussed. *Page 364 Many persons who had been called expressed the opinion that a fair and impartial jury could not be impaneled. Others expressed the contrary opinion. From the testimony on the subject of change of venue found in the record, counsel for the appellant very plausibly argues that the adverse testimony goes only to the extent of an opinion to the effect that it would be possible to impanel a jury of twelve men who were impartial and who would be capable of according the accused a fair trial. The true test, however, is not the possibility that twelve such men might be found but the probability, through the methods provided by law, that such a jury would be impaneled. See Carlisle v. State, 255 S.W. Rep. 991. As stated in the original opinion, the conflict upon this subject is such that based alone upon the matter of the application for a change of venue and the evidence heard thereon, we would not feel warranted in reversing the case. In view of that testimony, however, taken in connection with the fact adduced upon the motion for new trial that one of the jurors who rendered the verdict, had previously made in the most emphatic terms statements showing prejudice against the accused, we are constrained to regard the conclusion reached in reversing the case the proper disposition thereof. The motion for rehearing is therefore overruled.
Overruled.