ON MOTION FOR REHEARING.
HAWKINS, Judge.Appellant went into the store of Mr. Le Gate about nine-thirty at night, and in an effort to rob Le Gate killed him by shooting him with a forty-five caliber pistol.
We are at a loss to understand on what theory appellant reaches the conclusion that the case is one of circumstantial evidence. An eye witness testified to the facts which made out a clear case by direct testimony. Appellant himself admitted the killing, but claimed that Le Gate snapped a pistol at appellant, which so excited him that he inadvertently fired his own pistol three times. The evidence shows that Le Gate’s pistol was not snapped. He would have had a perfect right to kill appellant in resisting his effort to commit a robbery. It is regrettable that appellant’s pistol fired instead of Le Gate’s.
We find nothing in appellant’s motion to lead us to believe any mistake was made in affirming the judgment. We are led to think the jury reached a proper verdict, and that the penalty assessed was justly deserved.
The motion for rehearing is overruled.
Overruled.