Appellant has filed quite a lengthy motion for a rehearing in which he earnestly contends that we erred in our original opinion by sustaining the trial court in overruling his motion for a new trial based on newly discovered evidence. The testimony claimed to be newly discovered is to the effect that Joseph Clifford McFarland, a brother of appellant, would testify, if a new trial were granted, that about two years prior to the time of the alleged offense he was at the home of J. H. Atwell, at which time he saw the gun with which the alleged offense was committed, and he then noticed that the barrel of it was bent. The purpose of this evidence would be to controvert the testimony of J. H. Atwell and the officer and also that of the injured party relative to the condition of the gun. Appellant, who used the gun in killing his mother-in-law and then struck his wife on the head with the barrel of it, testified in his own behalf but did not claim that the barrel of the gun was bent before he shot at his mother-in-law. Consequently, the court was justified, from all the evidence before him, in reaching the conclusion that the claimed newly discovered evidence was probably not true. In 31 Tex. Jur. p. 284, sec. 84, the rule is stated as follows:
"The probable truth of the newly discovered evidence is an indispensable requisite to the granting of a new trial upon the ground here under consideration. Stated in another way, the rule is that a new trial on the ground of newly discovered evidence will be denied if it appears from facts proved at the trial, or from controverting affidavits, or otherwise, that the new evidence probably is not true. The probable truth of the new evidence is primarily a question for the trial court, and its conclusion *Page 473 will be disturbed only when an abuse of discretion is shown."
See also Carpenter v. State, 129 Tex.Crim. R.; Burns v. State, 12 Tex. Cr. App. 269; Mims v. State, 88 Tex.Crim. R..
Furthermore, it seems to be an established rule in this state that the failure to discover the alleged new evidence prior to the time of trial must not be due to want of proper diligence. In the instant case, the appellant, in his motion for new trial, did not state any facts as to diligence exercised by him, if any, but contented himself with the statement of conclusions; nor does he show that this evidence, if it existed, could not have been obtained from some other source, that is, from neighbors or friends of Atwell, or that he ever interviewed any of them with such object in view.
In the case of Turner v. State, 115 Tex.Crim. R., the court, among other things, made the following observation:
"While the motion sets out that it was discovered since the trial, the diligence which was used to discover same prior to the trial is nowhere alleged nor shown."
See also Johnson v. State, 2 Tex. Cr. App. 456.
Whether proper diligence was exercised is a question of fact to be determined by the trial court, and this court will not ordinarily disturb the trial court's conclusion unless it clearly appears from the entire record that he abused his discretion to the prejudice of the appellant. See Coleman v. State, 108 Tex.Crim. R., and authorities there cited.
Believing that the case was properly disposed of on the original submission, the motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 474