According to the State's testimony, appellant was seen by a deputy sheriff sitting on a truck in company with Reynolds and Lout. The truck was in motion and the lights were not burning. The witness threw a flashlight upon the parties and admonished them against driving without a light. Appellant stepped off the truck and walked away. After being told by the officer to stop, appellant trotted off for some little distance but was overtaken. There was taken from his person a container in which there was a small quantity of whisky. This was introduced in evidence upon the trial.
The defense of insanity was interposed. Several non-expert witnesses were called, some of whom gave testimony supporting the theory of insanity. Among these was the wife of the appellant, who said that he "Was not right mentally"; that he was unreliable in his business matters, and improvident in his trading; that upon one occasion she gave him a check to cash and a memorandum of articles that he should purchase for the money; that he had the check cashed but returned with the money and without the articles. She described his conduct as vacillating. Appellant and his wife had been married for about twenty-one years. She conducted a boarding house, and we gather from the testimony that she supported the appellant who was a "ne'er do well."
The witness Lout testified that he was a school-mate of the appellant and related some incidents, all of which are of a very trivial nature and occurred in his school days. He also heard the appellant curse about the house and remark many times about how many negroes he had killed or would kill. At one time the appellant announced as a candidate for constabe in Precinct No. 3, and did some electioneering among people who lived outside the precinct. This witness gave the opinion that, based upon these facts, the appellant's mind was unsound. Some other non-expert witnesses gave testimony of which the foregoing is typical. As we understand their testimony, none of them went to the extent of giving the opinion that the appellant was not capable of understanding right from wrong as to the particular act in question. The physician who qualified as an expert upon mental diseases was called by the State, and upon hypothetical questions based upon evidence adduced upon the subject of insanity by the appellant, gave testimony favorable to the State's view.
Upon a review of the record in the light of the motion for rehearing, the evidence impresses us as not such as to warrant this court in declaring that the verdict of the jury was not based upon sufficient evidence. *Page 439
After the verdict, appellant announced or explained to his attorneys that he ran because the parties with him told him to do so in order to save himself from arrest. Upon the issue of newly discovered evidence in his motion for new trial, it was claimed that this fact was not previously known to his attorneys; that they would be able to verify the appellant's claim that he was told to run by the persons who were with him. The motion is not supported by the affidavit of the witness who would give the new testimony, nor is there sufficient accounting for the absence of such affidavit. The rules touching newly discovered evidence are less rigid in cases where the defense is insanity. Schuessler v. State, 19 Tex.Crim. App. 472; and other cases collated in Branch's Ann. Tex. P. C. Sec. 33. We do not understand them to dispense with the necessity of supporting affidavits or satisfactory reasons for their absence. See Vernon's Tex.Crim. Stat., Vol. 2, p. 777, note.
Upon the trial judge rests the discretion to pass upon the merits of a motion, and his action is not to be disturbed in the absence of an abuse of discretion. See Shaw v. State, 27 Tex. Rep. 750; and other cases collated in Vernon's Tex.Crim. State., Vol. 2, p. 778, note 2. In the present case, such evidence of mental capacity as was before the court seems to refer rather to weakness of mind than to that infirmity which is required to excuse him from crime. See Coffey v. State,60 Tex. Crim. 77; Branch's Ann. Tex. P. C., p. 18, Sec. 30.
Regarding the disposition made of the case upon the original hearing as the correct one, the motion for rehearing will be overruled.
Overruled.