At a former day of this term this case was affirmed, and appellant has filed a motion for a rehearing, insisting that the court should not consider the affidavits secured after the adjournment of court, and incorporated in the qualifications of the judge to the bills of exception. In the original opinion we said this was improper, and in passing on this case and the bills we did not take into consideration the affidavits secured after the adjournment of the court. But apparently we did not make our meaning sufficiently clear, and we add this to say this court will not consider ex parte affidavits, secured after adjournment of court, filed either by the State or defendant. On appeal we consider the case in the record as made in the trial of the case and on the motion filed in the case.
Under our view of this case, it was immaterial where deceased was going at the time she was killed. The testimony showed that the last conversation appellant had with deceased was in the morning, except to ask for his clothes that evening, which was pleasantly answered. About five o'clock he had gone to a hardware store, rented a gun and bought shells loaded with buck-shot. He had then gone to the home of deceased, hiding the gun behind the house. When deceased left her home, dressed to go to a dance, appellant went out of the house the back way, got his gun, walked three blocks while deceased went one block, came to where she was with the gun leveled on her, and when she jumped behind her companion he said, "Come out, Coon, I am going to kill you." Deceased begged him not to do so; he run her — shot her while fleeing, screaming and begging for her life. When she fell he was running so fast he ran past his victim, checked up, walked back to her, and to be sure that he killed her, placed the gun to her head and fired again, threw the gun down and fled the country, being captured three days later in Caldwell County.
This is the testimony, and all the testimony, and if there was any act or circumstance in deceased's conduct to create passion in defendant's *Page 378 mind it must have been in the morning, for certainly nothing took place in the evening when they met, according to all the witnesses, to have excited him. Getting the gun at five o'clock, hiding it in the back yard, shows a preconceived design to kill, and then the circumstances of the killing, shows an absolute reckless disregard of human life.
In the testimony, failing to find any fact that would reduce the killing below murder of the first degree, the motion is overruled.
Overruled.