*212ON MOTION FOR REHEARING.
WOODLEY. Judge.It is contended that we were in error in overruling appellant’s Bill of Exceptions No. 4. This bill relates to the claim of jury misconduct in that a juror engaged in long distance telephone conversations with unauthorized persons without the permission of the court. It is argued that the consent of appellant’s attorneys was limited to telephone calls by the jurors to their wives.
We observe that the motion for new trial, wherein jury misconduct was alleged, was sworn to by appellant and his counsel “to the best of their knowledge and belief,” and the allegations as to jury misconduct were not otherwise supported by affidavit of any person in position to know the facts with reference thereto. Under these facts, the pleading was insufficient to require the court to hear evidence in support of the claim of jury misconduct. See Toms v. State, 150 Tex. Cr. R. 264, 200 S.W. 2d 174; Fielden v. State, 152 Tex. Cr. R. 597, 216 S.W. 2d 198.
It follows that the trial court did not err in overruling the motion for new trial for the insufficiency of the allegations as well as for failure of the proof.
Regarding Bill of Exceptions No. 2 and our disposition thereof, it is suggested that though the requested charge was incorrect, and therefore properly refused, it was sufficient to call attention to the omission from the charge of a correct instruction on the subject of feeble-mindedness short of legal insanity..
The charge as given contained a proper instruction to the effect that mere weakness of mind is no defense to crime provided the party accused has sufficient reason to know the nature and quality of the act charged against him, and knew the difference between the right and wrong thereof.
We have been cited to no decision requiring or permitting the trial judge to instruct the jury in his charge that they might consider feeble-mindedness of the accused in mitigation of the punishment to be assessed in the event of conviction. Not constituting any element of a defensive issue, the trial court did not err in refusing to further charge on the subject.
In Cross v. State, 101 S.W. 213, it was held that the trial *213court is not required to charge the jury upon mere weakness of mind, or that a party was one easily persuaded to do things that were wrong.
We see no inconsistency in the trial court’s ruling permitting the introduction of evidence showing appellant’s retarded and subnormal mental condition, and in declining to instruct the jury as to their use of such evidence in fixing the punishment to be assessed in the event of conviction. As to an affirmative defense, the trial court is required to charge the law and apply it to the evidence, while the punishment is for the jury’s determination from all the evidence.
Other contentions that have been ably re-urged by counsel for appellant have again received our attention, and we remain convinced that the case was properly disposed of on original submission.
We again express our appreciation for the able and conscientious efforts of court-appointed counsel in presenting the question on this appeal from the standpoint of their client.
As to the evidence said to be now available and discovered after the trial, we cannot agree that the trial court abused his discretion in refusing to grant a new trial.
The issue of insanity after conviction is not foreclosed against appellant and it may be that his newly discovered witnesses may be offered by him if that issue should be hereafter raised.
Appellant’s motion for rehearing is overruled.
Opinion approved by the court.