ON MOTION FOR REHEARING.
LATTIMORE, Judge.We have given careful consideration to the original and supplemental motions for rehearing herein in which appellant’s attorneys exhibit painstaking care and study of the facts which they insist are not of that cogent and convincing character as should be held sufficient in a case of circumstantial evidence.
That deceased was killed by some one on Friday night, January 19, 1934, seems beyond question. We have carefully gone over the testimony of each witness. That for the defense is in many instances directly contrary to that for the State, — a condition which was for the jury to solve and reconcile, and they *513having settled these conflicts against appellant, we are left but the question as to whether from the State’s standpoint there is enough criminating evidence to justify the conclusion of guilt.
Two witnesses saw appellant in conference with deceased in Hillsboro on the afternoon of said day, and heard appellant in the late afternoon tell deceased to “Be sure to be there.” From Hillsboro deceased went to his father’s home ten miles west. He left his home about dark in his sister’s car to go see his girl who lived near Whitney. He went first to the home of J. W. Tanner, and the two then went in the car together to see the Baugus girls. They stayed at the Baugus home until about ten o’clock p. m., and left together going back by Tanner’s home. Arriving here, they talked in the car a while and deceased told Tanner he was leaving that night, was going to meet appellant at eleven o’clock that night at Boyd Hill, and was going with him to New Mexico. Boyd Hill was not far from Aquilla creek, some two miles from the residence of the father of deceased and nine miles from the home of Tanner. One Allison saw deceased in a car on the road that night about a hundred yards from Aquilla creek between eleven and twelve o’clock, and a little distance away this witness said he also saw a Model A Ford coupe black car parked at the foot of Boyd Hill. This witness had seen appellant use a car answering this description. The next morning the car used by deceased that night was found under a shed at Peoria, a village three miles from the home of deceased and about six miles from Hillsboro. From Hillsboro a highway north leads by Alvarado, in Johnson County, on by Burleson to Fort Worth and northwest to New Mexico.
Whisenant, city marshal at Alvarado, in the discharge of his duties, was up and around the town during the Friday night in question. He testified that about two a. m. that night this appellant, who was well known to witness, came into a cafe in Alvarado and drank a cup of coffee. Witness said there was a young man in appellant’s car who did not get out. The car was a Model A Ford coupe. This witness watched the car go west, then turn north toward Burleson and Fort Worth. Burleson is the next town north of Alvarado on that highway. The place where the body of deceased was found in a burned barn was about a mile east of Burleson on this highway. Another witness who had been to Eastland and was on his way home that night, passed the burning barn at three o’clock and saw a Model A Ford black coupe parked near the highway, and a man was either getting in or out of this car, which had but *514one head light. The car of appellant, after it was found, was discovered to have only one headlight. The watch in the pocket of deceased stopped at 3.05. The car of appellant was found the next morning between Blum and Whitney, gathered from the testimony to be between forty and fifty miles from Burleson. The number plate on the front of appellant’s car was turned backward. Pistol cartridges were found in the car. The radiator of the car was still warm. Appellant did not testify. He put on witnesses to swear to an alibi. If their testimony had. been accepted, the jury would have had to believe Mr. Whisenant, the Alvarado witness, testified falsely. We have not attempted to recite all of the facts appearing in the record, but have merely set out enough to justify ourselves in the conclusion that the facts in the case supported the jury’s finding of guilt.
The motion for rehearing will be overruled.
Overruled.
Hawkins, J., absent.