Appellant bases his motion for rehearing on a claimed error in disposing of his bills of exception numbers three, four, five and six. Each of these four bills begin with the same recital, which is that the state had proved by one Walker that the difficulty between "appellant and deceased occurred near a tree in the vicinity where deceased lived;" then each of the bills proceeds to set out certain testimony from other witnesses for the state which was objected to on the ground that it was irrelevant and an attempt to impeach its own witness Walker. No recital appears in any of the bills which makes it apparent that the evidence so introduced was either irrelevant or impeaching. We gather from appellant's motion and the statement of facts that Walker had testified that the assault which resulted in deceased's death occurred in front of deceased's house. Walker claimed to have been an eye witness to the assault. Deceased was found in his bed upstairs suffering from a serious head wound which resulted in his death. The evidence of the other witnesses introduced by the state was to proof of circumstances from which the jury might have concluded that the assault was made upon deceased while he was in bed in his room. Unless we misapprehend appellant's position it is that the evidence objected to was inadmissible because it did not conform to the story told by Walker. We are not aware of any authority giving sanction to such principle. Ordinarily the state may call any witnesses her counsel sees fit and if their testimony varies the state may find it necessary to call upon the jury to determine the truth of the matter, but the witnesses cannot be said to "impeach" one another as that term is ordinarily understood, however much their testimony may present variant theories.
The motion for rehearing is overruled.
Overruled. *Page 288