The conviction is for murder with malice; the punishment, death.
The testimony of the state shows that the appellant committed a cruel and brutal murder by beating Mrs. W. T. Fortner, the mother of his deceased wife, on the face and head with a vase. Appellant’s voluntary written statement made and signed on the day of the killing was introduced in evidence by the state without objection and it shows an atrocious killing without justification.
Appellant did not testify but called numerous witnesses including a medical doctor and a psychiatrist whose testimony supports his plea of insanity at the time of the offense, which was his only defense.
The jury resolved the issue of insanity against the appellant and we find the evidence sufficient to support its verdict.
By formal Bill of Exception No. 1, appellant complains of the court’s action in overruling his first application for a continuance. The application alleges that he had mental irregularities over a period of 15 or 20 years before March 4, 1957, which at various intervals passed into insanity and he did not know the difference between right and wrong and was incapable of appreciating the nature, quality or consequences, of his acts. To support the above allegations he further alleged that while he was in the service and stationed at Bergstrom Air Base his mind got beyond his control and he “ripped off his uniform and stomped it on the floor,” that he was then insane and could not distinguish between right and wrong, that some of his fellow officers witnessed the act and observed his mental condition *567at the time which is material to his defense, and their whereabouts were unknown but within a few days their addresses could be ascertained from the Air Reserve Record Center. He further stated that there was a reasonable probability that one or more were in Texas; and that subpoenas would be issued for them.
The motion for continuance also alleged that while appellant was attending a Veteran’s Trade School at Harwood, Texas, in 1954, 1955, and 1956, with 20 or 25 other students he had mental lapses or spells and became insane or near insane; that all of said students then lived in Texas and if he was allowed a reasonable time he could locate them and have subpoenas issued for their attendance and that their testimony was material.
It was further alleged that Santiago Pasquero, a resident of Caldwell County, saw him experience a mental spell or crackup and act as an insane person in 1956, that he was temporarily out of the state but would probably return in a few weeks as he customarily did; that his testimony was material to appellant’s defense.
Appellant states in the application for a continuance that he employed an attorney on March 7, who immediately went to work on his case.
The state controverted the application for a continuance by a sworn denial and answer.
Bill of Exception No. 1 also complains of his inability to obtain other evidence because of the refusal of his application for a continuance. These other matters were not alleged in the application for a continuance, but were alleged in the First Amended Motion for a new trial and will be considered in connection. with the bills of exception complaining of the overruling of said motion. These other matters were not relied upon for a continuance at the time the application was presented to, considered and refused by the trial court.
There was no testimony or affidavits offered in support of the application for a continuance.
The record does not disclose an application for the issuance of subpoenas or that subpoenas had been issued for any of the persons named or described in the motion for a continuance.
*568N. H. Gottwald, teacher in the Veteran’s Trade School, testified on the main trial.
There appears no abuse of discretion by the trial court in refusing the application for continuance.
Appellant strenuously insists that the trial court erred in overruling his motion for a new trial. In the motion appellant set up and relies on what he claims to be newly discovered evidence.
The state controverted appellant’s amended motion for a new trial and offered evidence in rebuttal.
By Bill of Exception 2a, appellant presents as newly discovered evidence the records showing the findings of the medical board of the Air Force at Bergstrom A.F.B., made on April 8, 1952, recommending that he be relieved from active duty. The board found “generalized ateriosclerosis with probable premature senility,” “deterioration of mental facilities and physical stamina,” and “ulcer duodenum.” It further found that he was physically qualified for return to active duty but recommended against his return because of “indications that the officer is unlikely to render effective service upon return to duty by reason of a possible early recurrence or aggravation of incapacitating symptoms of a result of conditions peculiar to the military service.” Appellant’s release was approved by his commanding officer because of his failure of health and the age factor.
By Bill of Exception 2b, appellant urges error because of the court’s refusal to grant his motion for a new trial on the ground of the newly discovered evidence of Dr. John D. Fisher. Dr. Fisher’s affidavit attached to the motion recites that he was a member of the medical board which recommended appellant’s separation from the service, and his statement in the affidavit corroborates those shown by the findings of the board set out in our summary of Bill of Exception No. 2a. The affidavit also recites that he next saw the appellant on April 18, 1957, in Lockhart, and he found essentially the same evidence of premature senility as found by the medical board in April, 1952, and noted no marked progression of mental deterioration, and that his mental condition was virtually the same. The affidavit further recites, in reference to the 1957 examination:
“During the examination Purcell did not exhibit any failure of memory, except for the events which ensued on March 4, 1957, *569between the time he wrestled with Mrs. Fortner, and the time he returned to the house to call the doctor and the sheriff. We know, in mdicine, that such a period of amnesia may occur, and may be of short duration, in the epileptic, in hysteria, as a result of brain concussion, or as a result of direct destruction of the nervous system.”
* * * * *
“It is my impression that Purcell, with senile arteriosclerotic cerebral changes, may have had a period of amnesia during which time he would not have known the nature and quality of his action, nor would have possessed the ability to distinguish right from wrong; and in my opinion it is reasonably probable that Clark Purcell suffered from such a condition at the time of the homicide with which he is charged on the early morning of March 4, 1957.”
In Bill of Exception No. 2c, appellant complains of the refusal of his motion for a new trial because of the newly discovered testimony of Dr. Wade. Dr. Wade’s affidavit recites that he is a medical doctor, specializing in psychiatry, and testified on the main trial of the appellant. He states in the affidavit that he made a psychiatric examination of appellant on March 4, 1957, which revealed “that both rigidity of personality and a paranoid personality disorder were present. I felt that he had a mild degree of arteriosclerosis, and in my opinion his mild arteriosclerosis had intensified his paranoid state.” * * * “It is my opinion that Clark Purcell’s paranoid personality disorder and his mild arteriosclerosis would make him less flexible and more prone to give vent to his feelings. It is true that homicidal tendencies are characteristic of paranoia.” It further recites that he made a written report of his findings to the district attorney, before he testified on the main trial, but it was shown that such report was not known to the appellant or his attorney until after the trial.
Appellant in his amended motion for a new trial for the first time alleged that he desired to obtain the records of the Air Force showing the findings of the medical board before his separation from the service and also the testimony of the members of the board.
There was no showing on the hearing of the motion for a new trial that the appellant had ascertained the name of any person who saw him “stomp” his uniform while he was in the service at Bergstrom Air Force Base.
*570The witness Harrell, called by the appellant on the main trial, testified that he was present when the appellant and the deceased visited in his father and mother’s home about 5 p.m. on March 3, (the evening before the killing at 2:30 a.m. on March 4) ; and that both were pleasant and friendly at the time. No inquiry was made of him concerning the condition of appellant’s mind at the time of the visit.
Dr. John E. Talley, a medical doctor and psychiatrist, specializing in psychiatry, called as a witness by the appellant, testified that on March 16, 1957, he determined the nature of the offense charged against the appellant, conferred with members of his family, and examined him, and then expressed the opinion that he was “legally sane” at the time of the examination and further expressed the opinion that the appellant at the time of the commission of the offense (March 4) was insane. On cross-examination, Dr. Talley testified “that he (appellant) regained his sanity within a matter of a couple of hours at least” from the time of the commission of the offense.
The record shows that appellant’s voluntary written statement was made and signed at 11 a.m., March 4, about 9 hours after the killing, and no objection was made to its introduction in evidence; and that appellant introduced in evidence the portion of his statement that the state declined to offer.
The record in this case shows that the appellant in 1952 appeared in person before the medical board of the Air Force at Bergstrom Field, that he concurred in its findings and later asked to be released from the service.
The application relied on for a continuance did not allege as grounds that the appellant’s mental condition was such that he was unable to prepare his case for trial or make a rational defense or properly confer with his attorneys. There is no contention that appellant was insane at the time of his trial, or that he was incapable of preparing a rational defense.
Appellant takes the sole position that he did not know the difference between right and wrong and did not realize the nature and consequences of his acts at the very time of the homicide. In the absence of any other contention there appears no issue as to appellant’s sanity from shortly after the homicide until the present. Therefore, we must assume that the appellant had knowledge of and was in possession of all the facts which he acquired at the time he appeared before the medical board *571in 1952, concurred in its findings and asked for a release from the service.
Art. 753, Vernon’s A.C.C.P., provides:
“New trials, in cases of felony, shall be granted for the following causes, and for no other: * * * *
“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.”
By “new testimony” is meant proof of some new and material fact in the case which has come to light since the trial. 1 Branch, 2d Ed., p. 249, Sec. 214.
1 Branch, 2d Ed., p.,254, Sec. 220, reads in part:
“Where it appears that defendant or his counsel knew of the alleged new testimony at or before the trial, or that defendant knew that the proposed new witness was present, when the transaction occurred, or where the alleged new testimony is of such a character as that defendant must necessarily have known of its existence prior to the trial, and the trial court in the exercise of its sound discretion has refused a new trial, the judgment will not be reversed to permit him to take advantage of his own negligence and obtain a new trial to get testimony which he should and could have had at the trial.” (Citing numerous cases.)
In Cadena v. State, 94 Texas Cr. Rep. 436, 251 S.W. 225, a death penalty case, we held that the accused’s claim that he had syphillis which would bear on his defense of insanity could not be newly discovered evidence because it was within his knowledge before the trial.
In another death penalty case we held that the alleged mistreatment of the accused by officers in Mexico and Texas was not newly discovered evidence as would entitle accused to a new trial where he had an attorney and alleged misconduct occurred before the trial. Benavidez v. State, 154 Texas Cr. Rep. 282, 154 S.W. 2d 260. Other death penalty cases on the same question include: McCutcheon v. State, 159 Texas Cr. Rep. 61, 261 S.W. 2d 329; and Gordon v. State, 161 Texas Cr. Rep. 594, 280 S.W. 2d 267.
*572In Fogel v. U.S., 69 Sup. Ct. 136, 335 U.S. 865, 95 L. Ed. 411, the conviction was for failing to register for the selective service. Records of the Immigration Department showing his age when he entered the United States, which would show him to be over the registration age, was of a fact peculiarly within the knowledge of the accused, and could not have been newly discovered evidence. See also, Rivers v. State, 48 S.W. 172; Owen v. State, 95 Texas Cr. Rep. 155, 253 S.W. 521; Art. 753, Vernon’s A.C.C.P., notes 111-112; 13 Texas Digest, Criminal Law, Key 938'3).
Where insanity is a defense, the requirements of diligence in the discovery of newly discovered evidence are not as strict as in other cases. 31 Texas Juris, p. 271, Sec. 72; Schuessler v. State, 19 Texas App. 472; Skotnik v. State, 119 Texas Cr. Rep. 312, 43 S.W. 2d 602; Pappas v. State, 127 Texas Cr. Rep. 570, 78 S.W. 2d 619. In those cases there was a general plea of insanity. Appellant in the instant case contends only that he was insane at the very time of the commission of the offense, and at various intervals prior thereto. The general rule as to diligence is applicable in the case before us because there is nothing to indicate appellant was insane at the time of his trial or was mentally incapable of assisting and cooperating with his attorneys in preparation for trial.
By Bills of Exception Nos. 2f, 2g, and 2h, appellant claims that the court erred in refusing to grant his motion for a new trial because of the newly discovered testimony of John D. Simmons, Mrs. C. E. Jones, and Lon Jones. The affidavit of each is attached to the motion. They show that these persons reside in Caldwell County where the appellant resides; that they had known him for many years; had had many occasions to observe his actions and conduct and at times it seemed to them that he had lost his mind; that he was not normal mentally; something was wrong with his mind, and when he had spells he did not know what he was doing.
Neither of these affiants expressed the opinion based on their acquaintance with and observations of the appellant that he was not capable of understanding right from wrong or that he. was insane at any time. These are the tests accepted in determining an accused’s accountability for crime under the law. McCune v. State, 156 Texas Cr. Rep. 203, 240 S.W. 2d 305; Linney v. State, 152 Texas Cr. Rep. 560, 216 S.W. 2d 209.
Further, the appellant, in his amended motion for a new trial, *573claims newly discovered testimony of the state’s witness, Dr. Wade, in “that the withholding by the witness, Dr. Wade, with the knowledge of the District Attorney, of his testimony, to the effect that defendant was suffering from a mental disease, and was a ‘paranoid personality’ and was suffering from a ‘paranoid state’ with ‘homicidal tendencies’ intensified by a condition of ‘arteriosclerosis,’ denied the defendant due process and equal protection of the law.”
The record shows that when Dr. Wade testified on the main trial, he responded to all questions asked both on direct and cross examination. On the motion for new trial Dr. Wade testified that he then had not testified to anything contradictory to that to which he had testified on the main trial, but that he had given additional facts in his affidavit and on the hearing of the motion; that he was not asked about the additional facts before or on the main trial. He also testified that he had not changed his opinion of appellant’s sanity as expressed on the main trial.
The trial court certified that “the Defendant’s brother, Stuart M. Purcell, who sat at Defendant’s counsel table during the entire trial except when he was testifying, had talked with Dr. Wade at least several days prior to the date of the trial and said brother knew that Dr. Wade had examined the Defendant (pp. 88 & 236, S/F", and the said Defendant, his attorney or his brother, if they had so desired, could have discussed all the results of his examination with Dr. Wade prior to the trial.”
Therefore, it appears that the only reason for the failure to ascertain the additional matters which it is now shown that Dr. Wade would testify was that he was not asked about them. These matters cannot be set up as newly discovered testimony obtained since the trial because under the record before us they could have been ascertained before the conclusion of the main trial by the exercise of reasonable diligence, 31 Texas Juris, p. 277, Sec. 78; 1 Branch, 2d Ed., p. 260, Sec. 226; Nicholsen v. State, 107 Texas Cr. Rep. 631, 298 S.W. 436; Young v. State, 108 Texas Cr. Rep. 532, 1 S.W. 2d 883; Texas Digest, Criminal Law, Key 939 (3).
We conclude that the trial court did not abuse his discretion in overruling appellant’s amended motion for a new trial.
Finding no reversible error, the judgment of the trial court is affirmed.
*574Opinion approved by the Court.