The opinion
ON APPELLANT’S MOTION FOR REHEARING
MORRISON, Judge.
Appellant’s extremely able counsel on appeal has taken this Court to task for our original opinion, and though he does not attack or challenge our summary of the evidence set forth in the original opinion, he does express his belief that we accepted blindly the jury’s verdict and failed to exer *414 cise our judicial function of passing upon the sufficiency of the evidence.
Another Judge has carefully examined this 900 page record, and we remain convinced that the State has made its case. With persistence the prosecutor carefully combed the community for every available clue which would shed light upon the guilt of the person who shot and then later burned the body of this timid country housewife. Counsel admits the evidence established that his client had the motive or reason for wanting deceased disposed of and that she was seen with the deceased some seven hours before her body was discovered and that she told her son not to tell anyone that she had used the Buick automobile that morning. He fails to mention the testimony of the witness Wilburn, who placed appellant with deceased near where her body was found and who saw smoke rising in intermittent puffs from the garbage pit within an hour thereafter. This telling bit of evidence, when taken with the myriad other testimony, is amply sufficient to support this conviction.
Appellant again complains that the court erred in permitting the State to plead surprise when its witness Harold McLain, Jr. did not testify in accordance with his prior written statement. The statement was taken on the day after his mother’s arrest and she was later released on bail. Harold was brought before the Grand Jury and reaffirmed the correctness of his statement (with the exception of an immaterial point), and the prosecutor very wisely, under the circumstances, refrained from talking to the witness again until he was placed on the stand. This is a perfect case authorizing the plea of surprise.
Appellant again urges that he should have been permitted to examine the statement of the witness Wilburn and the prosecutor’s notes. They will be treated separately. Wilburn’s statement was introduced by appellant at the hearing on the motion for new trial. It was unsealed and available to counsel at that time and when he approved the statement of facts on motion for new trial. If any discrepancy between the statement and Wilburn’s testimony at the trial existed, appellant had ample opportunity long before this case reached this Court to point out on original submission wherein he had been injured by the refusal of the court to permit him to .inspect such statement at the trial. Such being the case, appellant has not brought himself within the rule set forth in Gaskin v. State, 172 Tcx.Cr. 7, 353 S.W.2d 467 , and Witt v. State, 170 Tex.Cr.R. 387 , 341 S.W.2d 457 .
Appellant’s last complaint is to the refusal of the court to permit him to inspect the District Attorney’s notes used by him in interrogating the witness Wilburn. Such notes were sent to us sealed and have been examined. The record does not disclose that Wilburn had ever seen the District Attorney’s notes and the holding in United States v. Dilliard, 2 Cir., 101 F.2d 829, 835 , cert. den. 306 U.S. 635 , 59 S.Ct. 484 , 83 L.Ed. 1036 , would preclude appellant’s access to the prosecutor’s notes.
Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.
ON MOTION FOR REHEARING