Appellant strenuously insists in his motion for rehearing that the evidence does not justify the heavy penalty inflicted upon him, and we have again reviewed the testimony. As stated by us, in substance, in our former opinion, it is no justification for reversal, that this court might feel that the facts offered mitigating circumstances. Under our practice the jury are the exclusive judges of the weight of the testimony. There is no question under the facts here but that appellant with a pistol shot and killed deceased who was standing by the side of the car in which appellant was at the time of the shooting. Neither is there any question of the fact that there had been previous trouble between the two in which deceased took part in administering a whipping to appellant. Deceased seems to have been unarmed at the time of the killing. The killing may have been the result of malice, or it may have been the result of an agitated condition of the mind resulting from fear. The settlement of these fact issues was for the jury, and there being testimony in the record upon which the verdict found support, we do not feel at liberty to disturb it.
The motion for rehearing is overruled.
Overruled.