
    People, Plaintiff and Appellee, v. Romero, Defendant and Appellant.
    Appeal from the District Court of San Juan, Section 2, in in a Prosecution for Murder in the Second Degree.
    No. 1436.
    Decided December 23, 1919.
    New Trial — Newly Discovered Evidence. — A new trial will not be granted on the ground of newly discovered evidence when the evidence could have been discovered before the trial by the exercise of reasonable diligence.
    Id. — Insanity—Evidence.—When a motion for a new trial is made on the ground that the defendant was insane when lie committed the crime, the appellate court should be shown at least that at the new trial the appellant could prove such insanity.
    The facts are stated in the opinion.
    
      Mr. José de Jesús Tizol for the appellant.
    
      Mr. José E. Figueras, Fiscal, for the appellee.
   Me. Justice Wole

delivered the opinion of the conrt.

The appellant has presented no brief, but at the hearing-two questions were earnestly presented to the attention of the court. The appellant had made a motion for a new trial-on the ground of newly discovered evidence tending, as counsel maintained, to show the insanity of the defendant at the time of the commission of the murder in the second degree of which appellant was convicted. The trial court refused to grant the motion. Not so much error is alleged but an appeal to our discretion is made and we are ashed to give appellant a real opportunity to prove her insanity. The second question raised was that the imprisonment for seventeen years was excessive.

Whether or not a person is or is not insane at the time of the commission of an alleged crime is a matter that may readily arise in the mind of an attorney. With reasonable diligence hi' can find the evidence tending to show such insanity. We can of course imagine a case where such insanity did in fact exist and the proof of it could not be discovered until after the trial, but ordinarily this is not so. The slightest inquiry among the relatives of the defendant in this (‘ase wonld have brought forth the newly discovered facts on which counsel relies. The appellant’s case has not been brought within the number where the facts could not have been obtained with due diligence.

Even, however, if diligence had been shown, no such showing has been made otherwise of even a probability that the defendant was suffering from insanity at the time of the crime. We have examined the affidavits presented with the motion for a new trial and they do not present a sufficient ease to justify us in going contrary to the finding of the court below.

After a trial courts must be reluctant to grant a new trial on the ground of newly discovered evidence.

"We appreciate the sincerity of the appeal to our discretion and the desire of counsel to dp his whole duty to his client. While we may have the power we have no authority to order a new trial in the absence of a legal showing stronger than the one here presented. Thfire is not the slightest probability shown that in a. new trial the insanity of the' defendant could be proved and otherwise she is not entitled to a new trial. If in point of fact counsel or friends could show the insanity of the defendant, ways are open to have a different kind of revision of her case.

On the other hand, it being presumed that appellant was sane, we find no reason in the record to go contrary to the judgment of the court in fixing the sentence- at seventeen years.

The judgment must be

Affirmed.

Ohief Justice Hernández and Justices del Toro, Aldrey and Hutchison concurred.  