ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant now alleges that because the state offered no controverting evidence relative to his insanity, that the verdict of the jury finding him sane is not sustained by the evidence, and that he was entitled to a verdict of an acquittal because of insanity. He cites us to the case of Fisher v. State, 30 Tex. App. 502, 18 S. W. 90, which merely holds that the burden of establishing insanity by a preponderance of the evidence is upon the accused. With this doctrine we agree, as is also declared in Roberts v. State, 67 Tex. Cr. R. 580, 150 S. W. 627. We also find the case of Gardner v. State, 85 Tex. Cr. R. 103, 210 S. W. 694, which makes the statement that where the testimony of many witnesses showing insanity is not controverted a conviction of sanity cannot stand.
There is testimony herein showing insanity to have been in members of the family of appellant’s father, as well as in his own sister’s family, and their families; and there is also testimony showing peculiar moods and a certain moroseness of appellant at certain times, but no mention is ever made of his present lack of a knowledge of the right and wrong of an act and the probable consequences thereof. There is evidence that appellant was subject to certain spells, and that he would go off by himself and avoid association with others and acted peculiarly. The testimony seems to show him possessed of such knowledge of the right and wrong of the particular act and the probable consequences thereof. Of course, the jury saw him and observed his actions at the trial; and they heard a witness testify that on the day of this occurrence, the appellant appeared at a certain store and purchased a new suit of clothes, and contrary to the usual custom, he took off his old clothes and put on his new suit at the store and had the old one wrapped up and took the same away. Upon an examination of the old suit, it was found to be stained with blood of the same type as that of the little girl and containing certain cells that could have come from the body of a girl her age. We think the jury could have used such in convincing themselves that he was endeavoring to dispose of certain evidence relative to a penetration of this child’s body. This evidence can be said to combat that of appellant’s family history and the testimony of his relatives as to his moods at certain times, and also to show that *298he was not in such moods when with the little girl. A typical insanity witness was appellant’s brother, who testified that “his mind comes and goes; he is not a flat idiot all the time but his mind comes and goes.” Appellant’s sister testified:
“His condition goes and comes; at times I think he is smart and at times I don’t think he knows anything, and during these periods I don’t think he knows the difference between right and wrong.”
On cross-examination she testified:
“He has been working in a carbon black plant and was working in the carbon black plant at Big Lake when he committed the offense; he has been married twice.”
No witness testified relative to appellant’s mental condition at the time of or near to the date of the offense; and we are still of the opinion that the testimony, together with the legal presumption of sanity, justified the jury in their verdict of sanity.
Therefore, the motion for a rehearing will be overruled.