In his motion for rehearing appellant presents two objections to our opinion. He first says we should have reversed the case because the court refused his first supplemental motion for continuance. As stated in our former opinion, this application was based on the ground of the then illness of appellant. Referring to the testimony of the two doctors who testified on the presentation of said motion for continuance, we observe that one of said doctors introduced by appellant said, among other things, that he was called to see appellant about 10 o'clock Saturday night and found him complaining of a pain in his side, but that his temperature and respiration were both normal; that he had "friction rub" in the left side that witness took to be pleurisy; that he gave him some morphine and creosote mixture. We turn aside to say that on the Saturday night mentioned the jury in this case had been obtained and the case passed over for further consideration on Monday following. The witness just referred to was giving testimony on said Monday. He further testified: "If this man was properly clothed and properly brought over here (evidently meaning to the court house) I don't think it would hurt him. * * * I think he is able to converse with his lawyers and talk with them about matters without inconvenience or pain. I don't believe I have heard him complain when he talks."
The other doctor was introduced in opposition to the motion and testified for the state that he examined appellant about one o'clock Monday afternoon and did not find any disease present. He further said that assuming that the defendant had pleurisy *Page 344 pain Saturday night, or friction rub, and that he has had no temperature or excitement of the pulse, and the weather was clear, and in view of the fact that it was only three or four hundred feet from the court house to the place where he resided, he saw no reason why appellant should not be able to undergo the strain of a trial at this time. He further testified it was his opinion that appellant could sit up in a chair. In the light of the testimony above set out we see no error in the action of the learned trial judge in overruling the supplemental motion for continuance.
Appellant also complains of our disposition of the matters contained in his bill of exceptions No. 5. Same shows that the state asked defense witness Peach if he had not said certain things to Ernest Burns, and that the question was objected to by appellant's counsel, and it is stated the court overruled said objection. The bill, however, further shows that the state's attorney changed the question and asked the witness if he did not tell Mr. Burns on the occasion referred to, the next morning after the killing, that he did not want to testify against the defendant before an examining court, and if he did not give his reasons for it. Witness answered, "No, sir; I don't remember making any such statement as that". The bill recites that appellant then and there objected and excepted, etc. It thus appears that there was no answer made to that part of the question which is argued in the motion for rehearing as objectionable.
Being of opinion that the case was properly decided, and that the motion for rehearing is without merit, same will be overruled.
Overruled.