Appellant's motion for rehearing urges that our original opinion was wrong in not sustaining his claim of newly discovered evidence on the issue of insanity. We have again patiently re-examined the entire statement of facts on the original trial, as well as the evidence developed on the hearing of the motion for new trial.
After hearing all the testimony on the question of newly discovered evidence the trial court qualified the bill bringing said evidence forward with a finding upon the issue as follows:
"The ground of insanity of defendant raised for the first time on motion for new trial was not newly discovered evidence. The witness George Bingham was present in court all during the trial of the case, conferred with defendant's attorney at the time of trial, and previous thereto, and testified on the hearing of the motion that he had told defendant's attorney of the facts known to him touching the defendant's mental condition."
The finding of the most careful and conscientious trial judge who presided carries great weight with this court. The facts are quite similar to those found in Williams v. State,125 Tex. Crim. 31, 66 S.W.2d 306. Appellant was used as a witness just as in the case mentioned. So far as the facts reveal his testimony was clearly and intelligently given, and if *Page 544 accepted by the jury as true made out a complete and perfect defense of accidental killing. It can not be denied that such defense would have perhaps been impaired if coupled with the defense of insanity. It is scarcely compatible with ordinary experience that one can remember and detail all the circumstances of a transaction, and at the same time be crazy to the extent of being excusable in the eyes of the law. Appellant was not a stranger. He had lived in one community all his life. Even the most casual inquiry from his neighbors and friends would have revealed his state of mind. If the record left this court in doubt as to whether appellant was amenable to the law we would be slow to order an affirmance, but no such doubt arises under the record.
The motion for rehearing is overruled.
Overruled.