Appellant's motion for rehearing discusses the great confusion in the testimony of the various witnesses. The killing took place between a beer joint and a package store. There is sufficient evidence to indicate that the killing was the result of drunkenness and the circumstances are typical of such cases. The motion challenges the statement that there is evidence to support the State's theory that appellant shot and killed the deceased while he was running away in an effort to avoid being killed. Both the justice of the peace and the undertaker testified that the bullet wound was on the left breast, in the front of the body. This is relied upon to contradict the statement in the opinion above complained of.
We have carefully examined the record again and think that the evidence of the State's witness Jimmie Strowman amply justifies the statement. It is quite possible that while the deceased was trying to flee from the scene he turned in a position to receive the shot from his left. While the bullet entered on the left side, it was lodged in a lobe of the right lung, indicating that it was not shot from directly in front but somewhat to his left. This by no means denies the State's theory which is based on the evidence of the witness Jimmie Strowman.
Considering the entire record, we fail to find support for appellant's contention that the evidence was without dispute that he entered the conflict to save the life of a friend. It is disputed on this question and the jury has decided the disputed issue against appellant.
The motion for rehearing is overruled. *Page 425