Appellant complains in his motion because we failed in our original opinion to write on the overruling of his motion for a new trial, which motion was based on what it called newly discovered evidence, which evidence he claims was not made known to him until after this cause had been submitted to the jury.
We find no motion for a new trial in the transcript, but we do find certain testimony in the statement of facts, taken at a time when it could be inferred that a hearing was had relative to such new trial.
It seems that after the deceased's body was brought to the undertaker's the clothing worn by the deceased at the time of his death came into the possession of the sheriff, and at the time of the trial these clothes were in the possession of the district attorney, and doubtless accessible to appellant's attorneys. There were many ways that these clothes could become material, but it *Page 335 seems that appellant's attorneys did not examine such clothes, nor make any inquiry relative to same until about thirty minutes after the retirement of the jury, at which time they were informed that there were about thirteen 22 calibre unfired cartridges found in the deceased's pockets. The record does not show any effort upon appellant's attorneys' part to avail themselves of such belated information, but does show that whenever they made inquiry relative thereto they were furnished the information. We fail to see any great materiality to such circumstance, and do not think such would have been likely to have changed the result of the trial. The testimony did show that appellant claimed that the deceased had fired one shot at him from a 22 calibre single shot rifle, and that such rifle had one exploded shell in the gun after deceased was shot by appellant, but the record did also show that a dead squirrel was found by deceased's body. Just how the fact that deceased had other unexploded shells in his pockets could add to or detract from appellant's self-defense testimony we are unable to see.
It was not claimed herein that the deceased attempted to shoot and was unable to do so on account of lack of ammunition, but appellant, the only eyewitness to the killing, claimed that deceased shot at him once, and that deceased whirled and appellant shot him in the back; that he then again loaded his shot gun and deceased "was wiggling and I shot him again, and then I stood there for a few minutes and then I left."
The motion will be overruled.