On Appellant’s Motion for Rehearing
WOODLEY, Judge.Appellant’s able and earnest counsel urge upon us that the overruling of his motion for new trial based upon the failure to grant his motion for continuance and upon newly discovered evidence was for one or both reasons error which should result in reversal of the conviction.
These contentions received careful attention on original submission and were, we hold, properly disposed of in our original opinion.
We again direct attention to the fact that, insofar as the time of trial was concerned, appellant was, like any other defendant, presumptively sane. In addition to this, all of the evidence, including that of witnesses for the defense, was to the effect that he was sane at the time of trial.
Under these facts the cases cited which deal with insanity rather than temporary insanity are not deemed applicable. For *274example, the quotation from Pappas v. State, 127 Tex.Cr.R. 570, 78 S.W.2d 619, 620, “It is true that appellant used no diligence to produce this testimony. If in fact he is insane, it could not be expected that he would use diligence and the law would not exact it of him.”
This reasoning could hardly apply here for the claim of insanity was limited to the time of the homicide and appellant’s witness testified that he (appellant) regained his sanity within two hours thereafter. There was no evidence showing or tending to show that appellant was insane after that two hour period following the homicide.
As we understand this record, appellant sought, by his plea of temporary insanity, an acquittal by which, having recovered his sanity within a few minutes or hours after the homicide, he would go free.
To support this defense he desired to obtain witnesses who, on prior occasions, had seen him act for other short intervals like an insane person. “There was no hint that any possible medical evidence as to sanity would be revealed by any records.” Court’s qualification, par. 5, Transcript p. 68.
That there be no doubt as to the correctness of the court’s qualification, the motion for continuance is quoted in the footnote.1
*275But after the verdict and now he, complains that he should have another trial, wherein he might prove insanity, evidenced by recurring acts and medical testimony (including Air Force records) showing mental deterioration and disease.
*276If, contrary to the record before us, there is reason to believe that appellant is insane, avjury trial of that issue is not precluded by the disposition of this appeal. Art. 932b, Sec. 4, Vernon’s Annotated Code of Criminal Procedure.
Appellant’s motion for rehearing is overruled.
. “The State of Texas vs. Clark R. Purcell No. 6652.
In The District Court of Caldwell County, Texas March Term A.D. 1957
“To the Honorable John R. Fuchs, Judge of said Court:—
“I.
- “Comes now the defendant in the above styled and numbered cause and says that a continuance of this cause should bo by the Court granted- at this time, and hereby requests such continuance, as below set-out and for the reasons below' shown.
“II.
“The indictment in this cause alleged that the felony for which this defendant is indicted was committed ‘on or about the 4th day of March,- A.D. 1957’. The Grand Jury that indicted this defendant was in session on March 4th, ■ 1957, at Lockhart, Texas, and immediately investigated said alleged felony and that day or the next day indicted this defendant therefor. " It was Thursday, March 7th, 1957, before defendant succeeded in employing an attorney to represent him herein, which attorney immediately went to work on the case and was notified that this cause was set for trial March 18th, 1957, by the proper authorities. In the too limited period of time I have had to w.ork on the matter I ascertained the defendant served in 3 wars, Worldwide War I, World War II, the Korean War.
“III.
“This defendant says that mental irregularities set in on him 15 or 20 -years ■ prior to March 4th, 1957, which at vari- . ous intervals passed into insanity leaving his mind incapable of distinguishing between the rightfulness and wrongfulness thereof, and incapable of appreciating the nature of his acts and the results thereof.
“IV.
“Defendant says that after the Korean War ho remained in the Reserve Officers Air Force and his last place of service was Bergstrom Air Base near Austin, Travis County, Texas, where he was discharged effective May 20, 1955, at which time his mind became up-set, disturbed and beyond the power of control and he ‘ripped off his uniform and stomped it on the floor’, not being conscious of such acts at the time, same not even registering on his mind, and during which defendant was insane and unable to distinguish between the right and wrong thereof, and not understanding the nature of such acts or the consequences thereof; and it later in the day when others being discharged at the time told him of the event and then defendant became mentally conscious of what he had done to the uniform he had honorably worn through 3 Wars and a later period of U. S. Government Service in the Air Force Reserve prior to said final disehai'ge. Defendant says that some of those who witnessed said uniform act were fellow Air Force Reserve Officers who resided in Texas, and he believes now reside in Texas and can be located within a reasonable period of time and under subpoenas of this Court can be brought here to testify in defendant’s behalf as to such acts about the uniform and defendant’s mental condition at the time; that such records, names and places of residence of said desired witnesses can not now be obtained from the offices in said Bergstrom Field because *275they have been forwarded to the Central Headquarters of the Air Reserve Records Center at Denver, Colorado, and defendant’s attorney has obtained proper gov-enment forms for ascertaining such facts, filled them out, defendant has properly signed same with fingerprints and same were on March 13, 1957, airmailed through the Lockhart Post Of- ■ fice in envelope properly addressed with the required postage attached to cause same to be delivered speedily to said Central Headquarters, and defendant verily believes and expects that within a few days the names and addresses of said witnesses for defendant will be in possession of defendant’s attorney in Lockhart, Texas, to where ho can forthwith make proper application to the Clerk of this Court and have subpoenas issued which will result in said witnesses attending this trial for the purposes aforesaid. This defendant says such testimony from said witnesses to said ‘uni-. form stomping act’ and mental condition at the time as above shown is material to defendant’s defense since defendant’s mind was in the same condition and state at the time he is alleged to have committed the felony for which he stands indicted in this Cause and is now on trial, for. Defendant says there is more than a reasonable probability that one or more of such witnesses can be located in Texas, if time is permitted, and his attorney has been pursuing this matter with all reasonable speed to procure such information since he was employed herein and since the setting of this case, and especially when taken in connection with the other things and matters said attorney has had to look into and attended to in preparation for this trial within the limited days above shown.
“V.
“Defendant says the above incident parallels one that occurred after his discharge from World War I about February of 1919 which happened in Nueces County, Texas, in September of 1919 when a severe storm drove the gulf or bay water inland and covered the tract of land on which defendant and his brother were then residing, and in water about 15 inches deep at their said home defendant became provoked, attacked his brother and with his hands around his brother’s throat was choking him to death and in the struggle said brother got defendant’s head under the water causing defendant to release the hold. Defendant says such attack resulted from no sufficient reason and would not have occurred had not defendant at the time been insane, incapable mentally of distinguishing between the right from the wrong of the act and being mentally incapable of realizing the nature of the act or the consequences that logically would result therefrom.
“VI.
“Defendant further says in addition to major mental -up-sots which led into insanity that between such attacks at times he appeared normal, was able to attend to business and talk intelligently with friends, but at other times his mind became moody, he would pass and meet friends but could not and did not recognize them, nor would he speak to them even though they spoke to him because at the time he did not recognize them due to his then mental incapacity; that from the time of said Nueces County attack defendant experienced mental upsets and disturbances revealing various degrees of insanity same usually following the happening of some fact or event which at the time was disliked by defendant or contrary to what defendant thought about it.
“(a) While a student at Veterans Vocational School at Harwood, Texas, in 1954, 1955 & 1956, on the happening of things, expression of ideas and teaching of theories contrary to what defendant though_or understood about same, defendant at times became mentally up-set, not normal, frustrated and very moody;
“(b) While attending said school, at times, defendant and the other students were required to apply practically what they had studied in theory, and on one of such occasions in 1956 defendant became mentally upset, lost the power of mental control and understanding, became dangerous to the point of making it unsafe for others to be around him and acted as an insane or near insane person would at the time under the facts and surrounding circumstances.
“(c) In such mental condition defendant then and there took an ax, swung, chopped and wielded same without rhyme or reason endangering the whole vicinity.
In his class at the time were 20 or 25 other students, all of whom then resided in Texas at various places, towns and counties, all of whom have graduated now, and a new class now attended such *276school, and defendant verily believes and asserts that all of such members of his said class, or most of them, still reside in Texas, and if this case is continued his attorney mil be able in a reasonable period of time to locate such members, cause them to be subpoenaed as the law provides and procure their attendance at defendant’s trial to testify as witnesses for defendant thereat. Defendant’s attorney since his employment herein and the date of setting this case for trial has not had a reasonable period of time, not sufficient time, to attend to such Vocational School matter of witnesses, most of whom from time to time witnessed one or more periods when defendant passed into such mental lapses or spells and became insane, or near insane, and dangerous, vicious and harmful to those around him. The testimony of such witnesses is very material to the defense of this defendant for the felony he stands indicted of committing in this cause.
“VII.
“Defendant says that one time in 1956 when he was seized with a mental spell and experienced a mental crack-up which passed into temporary insanity, that Santiago Pasquero, an adult resident of Lockhart, Caldwell County, Texas, was present and saw and understood the defendant’s mental plight and defendant says that if said witness were present to testify in defendant’s behalf that his testimony would be material to defendant’s defense; that for many years said witness has resided in Lockhart, Texas but annually leaves the state of Texas each year temporarily to work and earn money, at the end of each such period he returned to Lockhart, which is his permanent home, and resides there the balance of the year and several weeks before March 4th, 1957, said Pasquero left Lockhart and went to New Mexico and California for a temporary period of work and since so leaving has not returned to Lockhart, but in all probability will so return in a few weeks, as he customarily and annually does, whereupon defendant can then subpoena him as a witness as the law provides to appear in this cause and testify in behalf of defendant, and his such testimony is material to defendant’s defense in this cause, and defendant verily believes and asserts such desired witness’ presence can and will be procured for such purpose if this cause is continued.
“VIII.
“Defendant says that none of said witnesses are absent by the procurement or consent of the defendant.
“IX.
“Defendant says this application is not made for delay, and that there is no reasonable expectation that the attendance of said witnesses can be secured during the present term of this court by a postponement of the trial to some future day of this court.
“X.
“This is defendant’s First Application for a continuance.
“XI.
“Counsel for defendant since his employment herein and to the date of calling this ease for trial has been unusually diligent in trying to locate such witnesses within Texas, procure data from proper headquarters of U. S. Agencies where such data is available with the point in view of by proper legal process compelí the attendance of said witnesses at this trial, but lack of time together with the other duties counsel has had to attend to has prevented defendant having ample time, or a reasonable period of time in which to locate said witnesses, make application therefor, have subpoenas issued therefor, and compel their attendance at this trial at this time, said witnesses now being absent from this court and defendant having used due and sufficient diligence to procure such attendance within the time permitted as above shown, and defendant moves to continue this cause to the next term of this court. Signed March 18th, 1957.
“Clark R. Purcell /s/
“(Clark R. Purcell) Defendant”