Appellant was convicted of the murder of one Frank Strickland, and his punishment assessed at death. On the trial of the cause there was evidence tending to show a disordered state of the mind on his part, before the killing, and the issue of his sanity at the time of the homicide was submitted to the jury in the charge of the court.
The charge upon this point was substantially to the effect that an act, otherwise criminal, done and performed in a state of insanity is not punishable; but the true inquiry should be whether or not the accused was capable of having, and did have, a criminal intent. If he had such intent, he was punishable, otherwise not,—the true test being the capacity to distinguish between right and wrong as to the *168particular act with which he is charged. We deem this instruction in substantial accord with established precedents, both in our own and other States. Webb v. The State, 5 Texas Ct. App. 607, and authorities there cited.
After his conviction, appellant moved for a new trial, basing, his application, among other grounds, upon alleged newly discovered evidence. His own affidavit was appended to and in support of the motion, in which it is averred that since the trial of the case he has been informed that he could prove by two parties, whose names are given, who resided near the scene of the homicide, but both of whom were temporarily absent from the county, that on the day of and some hours before the difficulty they met the deceased, armed with a double-barrelled gun, who inquired of them for appellant, and stated that if he found him “ he [deceased] would make it warm for him ; ” that appellant had been in his way for some time, and that he (deceased) had succeeded in parting appellant and his wife, and “ that he intended to set him up.”
Appended to the motion appears also an affidavit of appellant’s counsel to the effect that the affiant was acquainted with the absent witnesses, and that their whereabouts is not known, and it was impracticable to obtain their affidavits in support of the motion. This affidavit further states that since the trial of the cause the affiant was informed that one Weaver, who testified for appellant on the trial, had stated after the trial that he knew facts that, if testified- to, would have secured appellant’s acquittal; that he (witness) had witnessed improper intimacies between the deceased and the wife of appellant, at the house of witness, anterior to the killing; and that this was not known to-the affiant until since the trial.
If proper diligence had been shown in the supporting affidavits, which we think was not done, they are wholly insufficient in that the names of the informants were not furnished to the court, nor are their affidavits produced or *169accounted for in any manner. In view of the evidence adduced upon the trial, we fail to perceive the materiality of the testimony. This evidence shows a deliberate preparation on the part of appellant to take the life of the deceased, which was executed with equal deliberation and coolness. There is nothing in the record tending to show communication of these threats, or that the appellant acted upon them ; nor does any thing appear in the motion for new trial showing an ability or even a disposition to supply this evidence. No act seems to have been done or attempted by the deceased, at the time of the homicide, manifesting an intention to carry a previous threat, if such was made, into execution; nor does it appear that the deceased did any act, at the time of the killing, which could show any hostile intention whatsoever toward appellant.
The affidavit of appellant’s attorney fails to negative the fact that appellant was informed of what the witness Weaver could testify, before the trial; and the facts stated in said affidavit, when viewed in the light of the testimony, are believed to be alike immaterial. If improper intimacy existed between the deceased and appellant’s wife, it does not appear that such intimacy was discovered by appellant, or that, immediately upon such discovery, appellant sought out the invader of his home and slew him. Under our provisions of law this was requisite to reduce the homicide below the grade of murder. Pasc. Dig., art. 2254; Sanchez v. The People, 22 N. Y. 147. Indeed, there is no evidence before us which tends to show the existence of any such relation, but only a suspicion upon the part of appellant to that eifect, long entertained; but whether well founded or baseless, we cannot say from the record before us.
The motion for new trial failing to comply in essential particulars with the requisites of the law, this court cannot say that the court below erred in refusing a new trial. Yanez v. The State, 6 Texas Ct. App. 429; Polser v. The *170State, 6 Texas Ct. App. 510 ; Evans v. The State, 6 Texas Ct. App. 513; Tuttle v. The State, 6 Texas Ct. App. 556 ; Hasselmeyer v. The State, 6 Texas Ct. App. 21; Tooney v. The State, 5 Texas Ct. App. 163; Templeton v. The State, 5 Texas Ct. App. 398.
It is complained that the verdict, after its return by the jury, was not marked “filed” by the clerk, as required by law. We know of no provision of law that requires this to -be done, nor has any such provision been pointed out to us by counsel. The statute only requires that it be entered upon the minutes of the court, which was done in this case. Pasc. Dig., art. 3088.
This case has received at our hands the most careful con-4 sideration and scrutiny, not alone because the life of a fellow-being was involved in the issue, but because appellant claims to have been surrounded by circumstances at the time of the homicide which appeal most strongly to the sympathies of every English-speaking person. Whatever may have been the provocation of appellant, the duty of this court in passing upon any criminal case' is confined to the questions of law and fact apparent upon the record sent up to us. The law has wisely vested a wide discretion in the judges who preside at trials, and who become personally cognizant of many phases in the course of the trial which cannot appear to this court upon the pages -of a record. An abuse of this discretion, if made to appear to this court, is susceptible of revision here; but in the absence of such showing, our duty is so plainly marked out that we cannot avoid it if we would.
Looking to the record, we fail to perceive any error of the court throughout the progress of the trial. The appellant was defended by counsel, and before a jury of his own selection. The prosecution was based upon an indictment sufficient in all legal requisites. The charge of the court distinctly sets forth the law applicable' to the case, and the verdict is fully supported by the testimony. No error is *171made to appear in any of the rulings on the trial, and the conviction is in all respects valid. We have no alternative, therefore, but to affirm the judgment, which is accordingly done.
Affirmed.