Appellant has filed a motion for rehearing. He calls our attention to the fact that this court committed a serious error in misstating the case as to who were engaged in the difficulty, and who were killed. Appellant is entirely correct in this matter, as the opinion in the subsequent portion thereof shows. Arthur Gray and his son John Gray were engaged in the difficulty on the one side, and not Shelly Gray as stated in the original opinion. Arthur and John Gray were both killed. Shelly Gray, another son of deceased, was not present at the homicide.
Appellant also seeks to show that the court is in error as to some of the statements regarding the respective theories in the case; but it does not occur to us, if this be conceded as to some of the details, the court was not entirely correct — that this would make any difference in the disposition of the case. Indeed, we fail to discover any material difference as to the theories presented in the original opinion and those stated in appellant's motion for rehearing. It is true that the Grays, father and son, were armed on the night of the homicide, and that they went to Wash Jenkins' house evidently expecting to find John Yancy, and that they were not on their way to Wash Jenkins' when the homicide occurred, but were returning therefrom. We fail to see that this makes any difference in the discussion of the assignments presented in the case.
Also in the original opinion in stating the theory of appellant we observed that appellant and Lewis Jenkins had a casual meeting with deceased and Shelly Gray. Of course we were in error as to it being Shelly Gray, as John Gray was with deceased. This is shown in subsequent portions of the opinion. But we fail to see why appellant should object to the "casual meeting" on the part of himself and Lewis Jenkins with the Grays.
It is further stated in the original opinion that when appellant and Lewis Jenkins met the Grays they attempted to shoot and kill appellant, and he shot and killed deceased, Arthur Gray and his son, "Shelly," as stated in the original opinion, but in fact John Gray. As we understand the record this was the theory presented by appellant.
We remarked in that connection that appellant also insists there is some testimony showing that Lewis Jenkins might have killed one of the parties. Appellant says this is not correct. It is true that John Yancy, as stated by appellant in his motion, said he killed both Arthur *Page 174 Gray and his son John. Wash Jenkins, another witness for appellant, states that there were two parties in the fence corner at the time of the homicide, and that immediately after one began firing another fired, and these two parties, or whom he took to be two parties, ran off. This may not be sufficient evidence to show that according to appellant's theory Lewis Jenkins might have been one of the parties firing the shot. This statement may not be accurate as contained in the original opinion. However, it does not occur to us this makes any difference. The fact that he participated in the homicide is abundantly shown by the testimony on the part of the State, and that he fired one of the two shots by which the Grays were killed. So far as a discussion of the case is concerned, we may adopt the theories of the State and the defendant as set out in appellant's motion for rehearing.
It is strongly urged that appellant has shown a case of positive evidence that authorized him to act in self-defense. It may be conceded if we take the testimony of appellant himself and Wash Jenkins, who was indicted for the same offense, that they make a case of self-defense. However, it is not difficult to gather from Wash Jenkins' testimony that he was cognizant that appellant and Lewis Jenkins were lying in wait for the Grays at the point where the homicide occurred. The Grays had been to his house he says, seeking John Yancy, they started away from his house, going, as he says, to John Yancy's house to find him. He accompanied them on some account, and he says that just before they got to where the killing occurred, and just before he discovered those parties in the fence corner, "I felt sorter curious; I suspicioned something, and that it was about time to go back; I was a little afraid to go any farther; I did not know what might happen." Evidently this indicates that he knew something was about to happen. He further says that just when they got to where the parties were, he saw somebody in the fence corner. "I said to Mr. Gray, `Who is that?' and Gray says, `I know who it is.' Gray says, `Is that you, John?' When the person in the fence corner answered, `Yes.' Then Mr. Gray said, `God damn you I will get you now,' and about that time the gun fired." This was unquestionably fired by one of the parties in the fence corner, as neither Gray nor his son John fired a shot, though both were armed.
Appellant urgently insists that because he introduced positive testimony of himself and witness Wash Jenkins, which he claims justified them, that the jury could not convict on the circumstantial evidence offered by the State. We do not agree to this contention. We believe that the circumstances offered by the State countervail and overcome the testimony of appellant's witnesses as to what occurred at the time of the homicide. We do not deem it necessary here to collate and set out the testimony in this regard. In our opinion it was amply sufficient. While we have conceded for the sake of argument that the witness Wash Jenkins' testimony suggests justifiable homicide, yet his *Page 175 evidence, as we view it, in effect reinforces the inculpatory circumstances offered by the State.
We do not deem it necessary to rediscuss the assignments of error, which were thoroughly gone into in the original opinion. Nor do we deem it necessary to say more than was stated in the original opinion, that under the circumstaonces the State was not required to put the witness Wash Jenkins on the stand. There being no error shown in the motion for rehearing of a reversible character, the motion is accordingly overruled.
Overruled. Brooks, Judge, absent.