ON MOTION FOR REHEARING.
MORROW, Presiding Judge.In the motion for rehearing reliance is had upon the same matters that were discussed in the original opinion.
Touching Bill of Exception No. 4, we do not regard the circumstance that the highway patrolmen wore uniforms similar to that worn by the deceased at the time he was killed as a matter that would authorize a reversal of the conviction. That is to say, if it be granted that the bill of exception was not informal, the circumstance is not regarded of such importance as to annul the conviction. However, as stated above, the bill is informal.
*522Touching Bill No. 5, criticizing the remarks of counsel set out in the original opinion, we note that the appellant became a witness in his own behalf and detailed the circumstances upon which reliance was had to support his plea of insanity. His testimony covers a number of pages of the statement of facts, thus affording the jury an opportunity to judge his mental condition in pursuing their duty to weigh his testimony. Appellant testified that he was not acquainted with the deceased during his lifetime; that he only knew that the deceased was a “cop” or what was called a “speed cop”; that he had never had any trouble with the deceased or any of the “speed cops”; that he had no ill feeling towards the deceased or any other man; that he knew of no enemies in the world. Appellant said that he had taken but one drink; that he did not feel any particular effects from it; that such an amount of liquor only revived him to a small extent.
The court instructed the jury upon the law of insanity as a defense and also upon the law of temporary insanity due to the recent voluntary use of intoxicating liquor.
The verdict adjudged appellant guilty of murder with malice aforethought, and assessed a penalty of confinement in the penitentiary for ten years. The judgment is in accord with the provisions of the Indeterminate Sentence Law. It is written so as to order the appellant to confinement in the penitentiary for a period of not less than two nor more than ten years. Under the law the jury had the privilege of assessing the penalty at death or confinement in the penitentiary for any number of years not less than two. Considering the verdict rendered in the light of the evidence, it appears quite possible that the jury in assessing the penalty may have taken into account the testimony introduced upon behalf of the appellant upon which they were told in the charge of the court that they might consider the evidence introduced intending to reduce the penalty upon the theory of temporary insanity produced by the recent use of intoxicating liquor.
Upon our re-examination of the record, we are impressed with the view that nothing occurred during the progress of the trial, as exhibited by the record before us, which would authorize this court to annul the verdict.
The motion for rehearing is overruled.
Overruled.
Hawkins, J., absent.