ON MOTION FOR REHEARING.
LATTIMORE, Judge.We find nothing in this record, showing any attempt on the part of deceased to arrest appellant, or any fact which would bring the case at all in line with, what we said in Stanfield v. State, 38 S. W. (2d) 94.
Complaint is made that we did not discuss bills of exception 2 and 3. Bill 3 sets out argument of special prosecutor objected to, but wholly fails to bring forward facts by which we-may determine from the bill itself whether the objections were' tenable. Bill 2 shows a statement of facts in argument, as. being within the personal knowledge of the special prosecutor, *13relating to ruts on the road where the homicide occurred. The objection to this was sustained, and the argument was withdrawn. The question of ruts seems of no great importance as we view the record.
We are unable to agree with the contention that the evidence does not support a verdict of guilty of murder upon malice. Defense witnesses swore to contradictory facts and statements, and the jury evidently did not give them credence. The state witnesses make out a clear case of murder with malice.
The motion for rehearing will be overruled.
Overruled.