ON MOTION FOR REHEARING.
KRUEGER, Judge.In his motion for rehearing, appellant contends that we erred in holding that the claimed newly discovered evidence was merely impeaching in its nature. He claims that while in a certain sense it is impeaching,' it is more than that. It tends to support his defensive theory.
We have again.reviewed the record in the light of his motion and have reached the conclusion that the question was properly disposed of in the original opinion since appellant could not have used the claimed newly discovered evidence as original testimony because it was hearsay. The only way to have used it was to have laid a proper predicate for its introduction by inquiring of the prosecuting witness if he did not at a certain time and place make such a statement and if he had denied it, then appellant would have been authorized to use it for impeachment; but, if he admitted it, then that was the end of it.
We are not unmindful of the rule that a new trial, will be granted when the newly discovered evidence, although tending to discredit or impeach a witness, is material and competent independent of its impeaching tendency, or where the newly discovered evidence shows a conspiracy between the alleged injured party and another to bring about a conviction on manufactured and perjured testimony, although the new testimony is also impeaching. See Reed v. State, 27 Tex. App. 317; *203Stewart v. State, 52 Tex. Cr. R. 100 (105 S. W. 809) ; Piper v. State, 57 Tex. Cr. R. 605 (124 S. W. 661) ; and Hale v. State, 51 S. W. (2d) 611. The instant case, in our opinion, does not come within either of the exceptions to the general rule.
The motion for rehearing is overruled.
Opinion approved by the Court.