Appellant requests leave to file a second motion for rehearing.
No new points of law are presented and only the correctness of the conclusions upon the law and the facts heretofore announced in our original opinion and that on motion for rehearing is questioned.
Appellant challenges the accuracy of two statements of facts in the opinion on rehearing, one being where we stated in substance that appellant signed the proof of death as a predicate for collecting the insurance on deceased. We were inaccurate in that regard. The witness Bailey did testify on direct examination that he took appellant's "acknowledgment to the death proof," and it was this evidence which led us into the inaccuracy pointed out. On cross-examination the witness corrected his statement and said appellant made no affidavit. The point in mind was not so much whether appellant actually made the proof of death, as it was that he was with deceased's wife and Franks on all occasions when they made the proof and was acting with them in collecting the insurance. The other alleged inaccurate statement was that appellant attempted to fabricate testimony to the effect that someone was with him on the day of the homicide when the state's evidence was to the effect that he was seen alone in the immediate vicinity of the killing. *Page 17 Upon this point the record shows that the accomplice Franks testified that appellant had told him no one had seen appellant going down to the scene of the killing, and that afterwards they found out some children had seen him go down there alone so appellant said he was going to get one Callicut to swear that he (Callicut) was with appellant. It was one or more of the Giles children who claimed to have seen appellant alone in a wagon in the vicinity of the killing, and who testified to such fact on the trial. After deceased's death appellant, in company with Callicut, went to the Giles home, and appellant told Mr. and Mrs. Giles that Callicut was with appellant at the time the children claimed to have seen him alone, to which statement of appellant Callicut then assented, but failed to so testify on the trial. Unless we misapprehend the record these facts justified the conclusion last complained of.
The record is voluminous and the proper solution of the problems presented, both as to the law and the facts, are not free from difficulty, but our best effort has been given in an attempt to reach a correct decision, the result of which has been reflected in what has been heretofore announced.
The request to file second motion for rehearing is denied.
Overruled.