Kuykendall v. State , 117 Tex. Crim. 571 ( 1930 )

Appellant has requested leave to file a second motion for rehearing in which our attention is directed to the Lane case, (Texas Crim. App.), 45 S.W. 693. This was an earlier case than any of those mentioned and analyzed in our opinion on rehearing. It was not referred to in any of them. We would be inclined to follow the Clements case, 43 Tex.Crim. Rep.,66 S.W. 301, it being later than the Lane case, if they are thought to be in conflict, for the reason that the exact point now before us was evidently given more consideration in the Clements case.

Appellant calls our attention to an oversight in not discussing his claimed newly discovered evidence set up in his motion for new trial. It occurs to us that the slightest diligence before the trial would have resulted in finding the evidence claimed to have been newly discovered.

The request for leave to file second motion for rehearing is denied.

Denied.