on state’s motion for rehearing.
DAVIDSON, JudgeThe State, in keeping with the views expressed in the dissenting opinion, earnestly insists that the majority opinion gives *354no effect to the discretion lodged in the trial court to determine not only the probable truth of the new testimony but also the probability that a different result would be reached upon another trial, with the new testimony presented. Stated in another way: The State’s contention is that if the trial court abused his discretion in this case, he had none in the first instance.
The term “discretion” or “judicial discretion”, as here used, is incapable of exact definition. Generally speaking, that term comprises two classifications — one, where the court has the absolute and unlimited power to determine a question before him as he pleases; the other, where the determination is to be made in keeping with that which is just and equitable under all the facts and circumstances and subject to review by another court.
The instant case falls within the latter classification. It is from that viewpoint we are to determine if the trial court erred or abused the discretion lodged in him when he overruled the motion for new trial.
Art. 753 and Sec. 6 of the Code of Criminal Procedure provides as follows:
“New trials, in cases of felony, shall be granted for the following causes, and for no other.
“Sec. 6. Where new testimony material to the defendant has been discovered since the trial. A motion for a new trial on this ground shall be governed by the rules which regulate civil suits.”
For said statute to apply, it is necessary that it be shown that the new testimony was in fact newly discovered; that it was material, and the failure to discover same before trial was not due to a lack of diligence on the part of the accused. As to these, appellant brings himself clearly within the statute, for it is definitely established that the new testimony was in fact newly discovered, that it was material, not cumulative, with no lack of diligence upon appellant’s part. Such being true, it appears that appellant presents facts which, under the provisions of the statute, constitute a prima facie case requiring the granting of a new trial. Such prima facie case, however, is not conclusive but is overturned when the trial court, in the exercise of the discretion the law places in him, determines that the new testimony is not probably true or a different result would not probably be reached if the new testimony is produced upon another trial. That the new testimony is not probably true may be shown from the facts proved upon the trial, controverting affidavits, the credibility of the witness or otherwise.
*355No attack was made, upon the hearing of the motion for new trial, as to the credibility of the witness; nor was evidence presented, by affidavit or otherwise independent of that produced upon the trial of the case, showing that the new evidence was not true. The State, therefore, depended upon the facts and circumstances proven upon the trial of the case to establish the showing that the new testimony was not probably true.
As pointed out in the majority opinion, the witnesses for the State and the appellant were all interested. Appellant and his witnesses insisted that the injured party did make the demonstration of reaching behind his wife and daughter before the shot was fired. The State’s witnesses were as insistent that appellant fired before the demonstration was made.
The new testimony corroborated appellant’s theory and tended to disprove that of the State. It was upon the claimed demonstration by the injured party that appellant predicated his plea of self-defense upon apparent danger.
The determination of the probable truth of the new testimony by the trial court is not alone determinative of the question of whether a new trial should be granted. The probable effect upon another trial, as producing a different result, also must be given consideration.
Note is taken of the fact that to support the overruling of a motion for new trial upon newly discovered evidence, it must be found that a different result would not be reached upon another trial. The burden is upon the State to so show. This court early so held, in Lindley v. State, 11 Tex. App. 283-287, where the rule is announced, that if doubt exists as to whether the new evidence would be effective such doubt should be resolved in favor of the defendant. 31 Tex. Jur., Sec. 85, p. 285 (at p. 287).
The conclusion expressed in the majority opinion is deemed in keeping with the rule stated, and also in keeping with the conclusions expressed in Russell v. State, 92 Tex. Cr. R. 114, 242 S. W. 217. In that case, the conviction was for murder. A new trial was sought, upon the newly discovered evidence. The defense was self-defense from apparent danger, by the demonstration of the deceased to hip pocket, which caused the accused to believe that he was about to draw a pistol. The State’s case depended upon the testimony of one witness, who testified to facts contradicting the self-defense theory. The accused attacked *356this witness by testimony that his reputation for truth and veracity was bad. The newly discovered testimony supported the defensive theory as to the demonstration and hip pocket movement on the part of the deceased. The conclusion was reached that a new trial should have been awarded because if the new testimony was true it “strongly corroborates that of appellant, and renders more probable his theory of the case, and may produce a different result upon another trial.”
While the State’s witnesses, here, were' not attacked as to reputation for truth and veracity, they were interested witnesses, as distinguished from disinterested.
No fixed rule or rules can be announced whereby it may be said that a trial court has or has not abused his discretion in overruling a motion for a new trial upon newly discovered testimony. Each case must be determined in the light of the peculiar facts and circumstances there presented. One controlling factor must be recognized here, as in all criminal cases, which is: the doctrine of reasonable doubt. If doubt exists between issues, that which is favorable to the accused should be adopted. Such is a basic principle of our jurisprudence. It is in that light that we arrive at the conclusion here reached.
Being unable to reach the conclusion that a jury upon another trial would not probably reach a different result, it becomes our duty to hold that the trial court abused his discretion in overruling the motion for new trial.
Believing the majority opinion correctly disposes of the case, the State’s motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.