ON MOTION FOR REHEARING. Appellant earnestly insists both in his motion and upon oral presentation thereof, that the court erred in declining to grant his application for continuance; also that the testimony does not justify the penalty inflicted. Both points have been carefully considered. It was the third application for continuance. As far as we are able to pass upon the question, practically all the material matters expected from the absent witness were in evidence from other persons. Stress was made in oral argument upon the importance of the testimony of the absent witness as showing that deceased was shot in front, and not in the back. As we understand it the testimony showed beyond much controversy that deceased was in fact shot from the side, the ball entering a little to the rear of the left armpit and being found lodged just beneath the right shoulder blade, indicating that it went from the left side to the right. The fact that the shooting was in the dark and that the absent witness was himself some distance from the parties, and the further fact that the location and direction of the wound was testified to by apparently disinterested witnesses, does not impress us with the material value of the absent testimony to the case of the defense.
Nor are we able to agree with appellant's contention that the testimony is not sufficient. Just before appellant left the house in which he, with deceased and others, was immediately before the shooting, he asked the proprietress of the house for his pistol, which act was accompanied by some conversation between the two, and appellant left with his pistol in his hand. Defense witnesses testified to seeing appellant with the pistol in his hand as he walked to the place where the shooting occurred. The knife of deceased was found closed and shown not to be a large knife. We are not of the opinion that the verdict was so excessive as to evidence passion or prejudice on the part of the jury.
The motion for rehearing will be overruled.
Overruled. *Page 213