On February 14, 1923 the judgment of conviction was ordered reversed and the cause remanded because of an error on the part of the trial judge in not permitting certain cross-examination of state's witnesses relative to the general reputation of deceased. On May 16th, 1923 a rehearing was granted to the state and the reversal set aside and the judgment affirmed on what we now believe to have been a misconception of the record. In the opinion of May 16th, reference is only made to bills of exception 17, 18 and 19. It is contended by appellant in his motion for rehearing that bills of exception numbers 14, 15 and 16 should be considered by us in connection with the ones mentioned. In bill number 14 it is stated that Robert Hanna at the instance of the state testified that the reputation of deceased was not that of a dangerous man, but that he was an inoffensive fellow. Bill number 15 discloses that T.R. Wiley, a witness for the state, testified to practically the same thing, and bill number 16 shows that Nat Archer also gave like testimony. Bill number 16 is qualified with the following explanation:
"____ defendant had testified to threats on the part of deceased, and had offered testimony tending to prove that deceased was such a man as was likely to execute such threats, and in rebuttal of this the state was permitted to offer testimony to the effect that deceased was not a person whose reputation was that of being a dangerous or violent person."
Bill number 17 which complains at the refusal of the court to *Page 219 permit appellant to interrogate Hanna as to his knowledge that an indictment for robbery was pending against deceased at the time of his death is explained by the court with reference to the qualification to bill number 16, and bills numbers 18 and 19 relating to the refusal of the court to permit appellant to interrogate Wiley and Archer upon the same subject are also approved with reference to the explanation affixed to bill number 17. It will be seen therefore that appellant is right in his contention now made that the six bills of exception should be considered together, and as so considered clearly present the question in the mind of the writer of the original opinion.
Believing the case was properly disposed of by a reversal upon its original submission we pretermit a discussion invited by appellant in his motion for rehearing upon the question of newly discovered evidence.
The order granting the State's motion for rehearing and ordering an affirmance will be set aside, the original opinion reinstated, and a reversal and remanding of the cause thereunder is now ordered.
Reversed and remanded.