The opinion
ON REHEARING
December 20, 1922.
LATTIMORE, Judge.
Apellant bases his request for a rehearing upon only two grounds, which are, first, that if it be conceded that diligence was shown to secure the presence at the trial of a witness by the name of Smith for whom a continuance was asked, that a new trial should have been granted upon the proposition that the testimony of Smith was shown to have been material upon the trial; second, that this court erred in upholding the action of the trial court in refusing to charge the law of circumstantial evidence as applicable to the theory that deceased was killed with a singletree.
In the original opinion this court asserted that no diligence appeared to secure the presence of the witness Smith. The only fact appearing in the record that would tend to make the testimony of said witness at all material was the statement of appellant that Smith had told him that deceased had threatened to lay for him with a gun, and that Smith said deceased might also have a pistol. The statement of facts seems to place it beyond dispute that when deceased fell or was thrown from his wagon just prior to the homicide, appellant and his companion went up to him and beat him over the head with the gun of deceased which they had secured, and that a short time after and when they had gone a little distance from deceased, they looked back and saw him trying to get up on his hands and knees and that they ffien went back to him again and beat him in the head with the stock jf said gun, after which last assault no one saw deceased move. There seems absolutely nothing in these facts upon which any self-defense, based upon the hypothesis that appellant had been told that deceased might have a pistol, could be predicated. "YVe further observe that
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ample time appears between the conviction of appellant and the over-, ruling of his motion for a new trial for the affidavit of witness Smith to have been procured, if in fact he would testify as stated in the application for continuance. No such affidavit was made a part of the motion for new trial.
Upon the proposition that the court ought to have charged on circumstantial evidence based on testimony that a singletree was found riot far from the body of deceased upon which some of the witnesses thought they saw blood, we observe that the record is so replete with direct testimony of the fact that appellant struck deceased upon the head with the butt of his gun and that at the time said blows were inflicted deceased was struggling to his feet, and that afterwards he lay still and was apparently dead, that the fact that a bloody singletree was found not far from his body ánd that no one saw appellant of his companion use a singletree, would not be deemed a fact of such importance as to call for a charge on circumstantial evidence as applied to the theory of death resulting from the use of said singletree.
Being unable to agree with appellant upon either of the propositions contained in said motion, same will be overruled.
Overruled.