Smith v. State , 2 Tenn. Crim. App. 192 ( 1969 )

ON PETITION TO REHEAR

DWYER, Judge.

The defendant has filed a courteous petition to rehear. He relies in his petition to rehear on two grounds, namely: (1) The trial court abused its discretion in not granting defendant a short continuance in order to secure medical testimony for the defense; and (2) the trial court erred in not charging requests bottomed on the American Law Institute’s test of criminal responsibility.

Counsel for the defendant presents no new matter of law or fact overlooked by this Court when we overruled defendant’s assignment of error pertaining to the trial court’s action in not again granting defendant a continuance. As set out in our opinion, presently-retained counsel and previously-retained counsel had secured a number of continuances in the trial court. Assignment of error number one in the petition is again accordingly overruled.

In defendant’s second assignment he again asked this Court to set aside the M’Naghten rule adhered to in this State as the test for criminal responsibility. Defendant in his petition states this Court was in error when we said in our opinion, quoting from Spurlock v. State, 212 Tenn. 132, 368 S.W.2d 299, that only one state and but two Federal circuits had abandoned the M’Naghten rule. We are, as we were then, well aware that since Spurlock v. State, supra, other Federal circuits have abandoned the M’Naghten rule. This Court was not in error but there was an erroneous assumption on the part of the defendant as to that fact. It is apparent from this petition, as well as from the record, that counsel for the defendant does not like nor agree with the M’Naghten rule. In reference to the antiquity of the M’Naghten rule, he says we should not look to the past for wisdom, for that would be like looking in a rearview mirror. Neither should we decide our present by what might be in the future because that would be chaotic indeed. In City of Paris, Tennessee v. Paris-Henry County Public Utility District, 207 Tenn. 388, 340 S.W.2d 885, 890, the following language may be found:

“ ‘ “The office of a petition to rehear is to call the attention of the court to matters overlooked, not to those things which the counsel supposes were improperly decided after full consideration” (Louisville & N. Railroad Co. v. United States Fidelity & Guaranty Co., 125 Tenn. 658, 691, 148 S.W. 671, 680). Gulf, M. & O. R. Co. v. Underwood, 182 Tenn. 467, 476, 187 S.W.2d 777, 780; Colbaugh v. State, 188 Tenn. 103, 112, 216 S.W.2d 741.)’ Delta Loan & Finance Co. of Tenn. v. Long, [206] Tenn. [709], 337 S.W.2d 606, 607.”

A petition for rehearing should never be used merely for the purpose of rearguing the case on points already considered and determined, unless some new and decisive authority has been discovered which was overlooked by the court. There has been no new matter of law or fact presented in this petition to rehear which was overlooked or not considered by this Court when it rendered its opinion. Therefore, respectfully, the petition to rehear is denied.

RUSSELL and MITCHELL, JJ., concur.