Thacker v. State

ON state’s motion for rehearing.

HAWKINS, Judge.

— The State has now filed a motion for rehearing which was presented in oral argument by Hon. Hollis Kinard, District Attorney of the First Judicial District, who is recognized as one of the ablest prosecuting officers in the State. While commending his zeal in representing the State we find ourselves unable to agree with his contention that appellant should be held under the evidence a principal with Tom Burleson in the killing of John Gann. Upon consideration of appellant’s motion for rehearing each member of the court gave his best attention to an analysis of the evidence upon the point at issue. Having before us at the same time the Harris case, in which the facts were somewhat variant from the record in appellant’s case, it was difficult to differentiate the cases. But this we endeavored to do as best we could. We realize that it is sometimes difficult to present in the record a true picture of *669an occurrence, but we must of necessity be governed by the impressions gathered from the record in matters of this kind. Many of the circumstances relied on as criminative against appellant appear subject to explanation upon grounds consistent with his innocence of an acting together with Burleson in the killing.

Believing the proper disposition was made of the case at the time appellant’s motion was granted, the State’s motion is overruled.

Overruled.