ON MOTION FOR REHEARING.
MORROW, Presiding Judge.In his motion for rehearing appellant claims that bills of exception No. 3 was sufficient to require consideration. Upon the authorities cited in the original opinion and many others, the bill is fatally defective in failing to show that the testimony of the witness Newsome was material. The bill gives no information upon the subject and does not refer to the statement of facts, and in the motion it is implied that the statement of facts should be looked to. Such is not the law. See Branch’s Ann. Tex. P. C., secs. 209 and 213, pages 134, 137; also Tex. Jur., vol. 4, p. 217, sec. 156.
Due to the penalty assessed and the appellant’s contention, the statement is made that the witness gave testimony to the effect that some four days before the homicide, the deceased said that “if he (referring to appellant) puts his feet in my place, I will kill him” and that this was communicated to the appellant. Deceased was not killed at his home. Four days after the conversation, the deceased was at a place called Euless, where he was sitting on a bench in company with some friends. The appellant approached in his automobile, called the deceased, and then shot and killed him. The entire substance of Bill No. 3 is to the effect that while Newsome was testifying, he was asked how long since he had had a job. He replied that he did not know exactly but that it was a good while. Counsel then asked him if “it has been so long you can’t remember having done an honest day’s work.” Objection to the question was sustained, and the jury instructed to disregard it. If the bill were considered in connection with all that is in the statement of facts, and especially when considered in connection with the instruction of the court to disregard the question, it would not be regarded as reversible error.
No other questions are presented in the motion which require discussion.
The motion is overruled.
Overruled.