ON MOTION FOR REHEARING.
HAWKINS, Judge.Appellants Boggus Underwood and Clay Russell have filed a motion for rehearing based upon newly discovered evidence in two particulars. They set up in their motion for new trial that upon the same night of the robbery in the instant case another filling station in the same town was robbed and a pocket book taken from Mr. Woolfalk, *341and that said pocket book was found at or near the place where the present robbery was committed, which finding of the pocket book was discovered since the present trial. Appellant’s attorneys argue that the same parties must have committed both robberies, and that Woolfalk, not having identified the two appellants named as the parties who robbed him, is persuasive that they are not the parties who committed the instant robbery. If Woolfalk had positively sworn that Underwood and Russell were not the parties who had robbed him and taken his pocket book there would have been some ground for the position taken by appellant; but Woolfalk simply declined to identify appellants as the parties who had committed the robbery upon him. He said he would not swear that appellants were not the boys, and neither would he swear that they were the boys who had committed the robbery at his (Woolfalk’s) filling station. There would be no force in the argument that because Woolfalk failed to identify them, therefore, perhaps Mr. and Mrs. Cannon, the victims of the robbery in the present case, were mistaken in their identification of appellants as the parties who robbed them.
The other ground of newly discovered evidence upon which appellants sought a new trial and urge here as a basis of motion for rehearing is the contention that Mrs. Cannon in her testimony before the jury had relied chiefly for the identification of appellant Clay Russell upon the color of a jacket he was wearing, appellant claiming that it had been discovered after the trial that the jacket in question had come into the possession of appellant Russell since the robbery. There would be strength in appellants’ position if Mrs. Cannon’s identification of Russell had been based upon the jacket in question, but we do not find such to be the fact. Mrs. Cannon’s testimony upon the point at issue is reproduced.
“That little fellow in the tan jacket (Russell) was with him (referring to Underwood) * * * This fellow here, Clay Russell, was dressed in, I would say, khaki work clothes and had on a light jacket somewhat like he is dressed now, and had on a cap. * * * Russell talked and when I went down there I recognized him at once; I could not be mistaken about him. * * * They were in there two or three minutes, something like that and I will tell the jury that I will swear positively, to that jacket on that boy. I could not be mistaken. * * * I heard them talk that night when they came down to do the hi-jacking, and I heard them talk when I went to look them over to see if they were the same men. There is something unusual about *342Clay Russell’s eyes, one of them has a scum or something over it. I recognized them from their voices; I heard them talking up at Wellington and down here and I recognized the voice as being the same voice. I could not be mistaken as to them being the same boys. The voice used down there was when they were giving commands about robbing the place, and up there I just heard them talk when the officers, were saying something, and from that talk in which I took no part I recognized it to be the same voice. I said that I recognized the eyes of Clay; he was covered that night except his eyes and I got a sufficient look at the eyes that night that I knew them when I saw them uncovered, and all, up at Wellington. There is something so peculiar about his eyes that I noticed the difference that night, and then picked it out again. I said that one of Russell’s eyes has a scum on it, I do not know which one it is, I cannot see them from here. (At the request of Mr. Templeton, the defendant Clay Russell went around close to the witness.) I can see from here and it is the left eye. That night in the excitement there I recognized the queer look of that left eye. I call, it a scum, and it was so queer that I recognized it at once when I saw him at Wellington, and I could see that there in such a way that I can now swear to it again.”
In view of the testimony of Mrs. Cannon as hereinbefore set out the court was fully warranted in declining to grant a new trial upon the ground of newly discovered evidence with reference to the article of clothing in question. If such testimony had been before the jury it would not probably have changed the result of the trial.
The motion for rehearing is overruled.
10verruled.