In his motion for rehearing appellant calls our attention to an inaccurate statement in the original opinion on one point. In stating Mr. Conner's testimony, we stated he testified that the head waiter directed appellant to wait on Burns and his companion. This should have been on two negroes instead of deceased and his companion. What we quoted that appellant then said was directed to the head waiter about the negroes. To that statement deceased remarked as quoted in the opinion. However, we gladly make the correction to which appellant calls our attention.
Appellant next complains of this statement in the original opinion: "The testimony of several other witnesses shows that appellant was very mad with Burns at the time," claiming that this is not in accordance with the statement of facts. We have again read the statement of facts, and on this point it shows that said witness Conner, who was the first introduced by the State, on this subject, testified: "He (appellant) seemed to be in an ill-humor. He looked more like a demon than anything else. He seemed to be very angry. He seemed to be excited then." On cross-examination on this point this witness, among other things, said: "He (appellant) appeared to be enraged when I looked at him. When I looked at this man he appeared to be angry, enraged and terribly excited." Mr. McKellar, the next witness for the State on this point, on cross-examination, testified: "I don't know that Ahearn appeared to be excited at the time the shots were fired, but he was sorter angry looking." Mr. Luth, the State's next witness, on redirect examination testifiel: "Ahearn never seemed to become angry before that time when they used that language." This testimony is all of the testimony on the subject of appellant being mad, except what appellant testified himself, which is stated in the original opinion.
The motion is overruled.
Overruled. *Page 154