Appellant again insists we should have considered his bills of exception. He attempts to support his contention by an affidavit. The affidavit made and appearing in the record has no reference whatever to bills of exception, but relates solely to a statement of facts. The statement of facts in this case is in the record, and was considered in connection with our original opinion.
Appellant further insists that his special charge No. 3, which was refused, was a correct presentation of the law, and that the refusal thereof was erroneous. Examining the main charge, we find substantially everything which appears in the special charge. Some superfluous words constitute the only difference. The special charge would have told the jury to consider *Page 666 all the facts and circumstances "both those occurring at or about the time of the homicide or prior thereto," in determining whether appellant acted on sudden passion. The main charge told the jury, in determining such issue, and the condition of appellant's mind, they should take into consideration all the facts and circumstances in evidence. We think there is no material or legal difference.
The motion for rehearing will be overruled.
Overruled.
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