on state’s motion for rehearing.
HAWKINS, Judge.The state predicates its motion on the proposition that our original opinion is too broad in characterizing the statement made by appellant at the sanitarium and proven by the state, as set out in our original opinion, as an “exculpatory statement of fact.” It is insisted that he language attributed to appellant is ambiguous, embraces a conclusion, and furnishes no tangible claim that the state could combat.
No instruction was given to the effect that the state was bound by such statement, and that the burden rested on the state to disprove that the transaction took place as explained by appellant, neither was there a requested charge upon the subject. If the question of the propriety of such an instruction was before us the state’s contention would be most persuasive because of the ambiguity of the language attributed to appel*465lant at the sanitarium. Our original opinion was dealing with appellant’s contention that the evidence was not sufficient as a matter of law to support the conviction. From that standpoint the language in question must be considered in connection with the evidence given upon the trial as to how the difficulty arose, and appellant's relation to it. The state had practically no evidence of a satisfactory nature explanatory of appellant’s statement made to parties at the sanitarium. The evidence of appellant and the man who was with him at the time of the killing made clear that when appellant said, “I had to do it,” he meant to convey the information that he was acting in self-defense. The other ambiguous phrase, “We was messing with my business,” — or, as some witnesses put it, “meddling with my business,” — was explained upon the theory that the appellant, as chief of police, was charged with the duty of enforcing the ordinances of the city, one of which prohibited the parking of cars on the streets at night. Appellant complained that deceased — who held no commission at an officer, but who was employed by the merchants as a night watchman — had been authorizing such night parking. When considered in connection with the positive testimony of appellant and the only other eyewitness as to how the killing came about, the expression last referred to loses its significance as a circumstance against appellant.
We think the original disposition of the case was correct. With the language of our original opinion modified as indicated herein, the state’s motion for rehearing will be overruled.
Overruled.