Cain v. State

Appellant contends that in our original opinion we were in error in stating that appellant reloaded his gun and fired a second shot at deceased. This contention is correct, and the evidence discloses that appellant fired only one shot at deceased, striking him in the stomach, from the effects of which he shortly died.

The last two sentences in the first paragraph of the original opinion should be changed so as to read as follows: "Loading his gun again, appellant followed deceased, who expired a few minutes after the shot was fired."

Appellant also questions the fact that malice was shown by the testimony. The facts show that after an argument over the payment of twenty cents to appellant by deceased, the appellant left, saying "I'll be seeing you." That appellant left and was gone about thirty-five or forty minutes. That he returned with a shotgun, but left the same out near a hog pen in some bushes. That he then approached where the deceased *Page 429 was standing, and again started the argument about the twenty cents. After some recrimination between each other, the deceased picked up a brick, and the appellant went to where he had left the gun, and shot the deceased. We think these facts were sufficient to establish a basis on which the jury might predicate their verdict of a killing upon malice.

We see no reason to recede from the views expressed in our original opinion.

The motion for rehearing is overruled.