ON MOTION FOR REHEARING.
LATTIMORE, Judge.— In his motion for rehearing appellant presents two propositions. The first is that the court below should have charged on the law of circumstantial evidence, *129and that we erred in holding this not necessary. Appellant insists that the proof of the cause of death is not positive, hence the necessity for the charge mentioned. We can not agree with appellant. The evidence clearly shows death to have been caused by the use of a shot gun, and nine buck shot wounds were found on the body of deceased, some of which penetrated the heart or the main arteries, and, in the doctor’s opinion, caused death. Cross-examined the doctor said that a broken neck might cause death, and that if deceased fell from his horse and broke his neck, it would cause death. No witness testified directly or by intimation or suggestion that the neck of deceased was broken, or that death resulted from such cause. In the absence of some testimony suggesting this as the cause of death, we do not think it the duty of the court below to submit the case on the law of circumstantial evidence for no better reason than the questions above set out.
Nor do we find evidence to support the proposition that deceased was killed by any person other than appellant, except in so far as appears below:
The testimony shows that a group of convicts were winding their way from the bunk-houses to the plowing grounds a couple of miles away. They skirted a field of growing corn. Deceased, a guard, was at the head of the file on his horse. The convicts on mules and in line followed. Steele, — another guard, — brought up the rear. Gibson and Trammel, two convicts, — suddenly attacked Steele. Gibson got Steele’s pistol,— Trammel his shot gun. Trammel ran in the corn toward the head of the line, and Steele swore that he saw Trammel shoot deceased. Most of the convict witnesses say they do not know who fired the shot. This was to be expected. One of them affirmed that he saw two men struggling with Steele; saw one of these two run down toward deceased with a shot gun; heard the shot, and saw the man who had shot run back, and with Gibson get on Steele’s horse and flee. On cross-examination he changed his testimony.
It appears from the testimony that the line of convicts was about one hundred yards long; that Smith, deceased, was some thirty yards in front of them; that Steele was about the same distance behind them. Appellant introduced several convict witnesses who testified they saw two men scuffling with Steele in the rear; at the same time a shot was fired up in front. If we understand appellant’s contention, as gathered from the record, he sought to have the jury instructed upon the law of alibi. We find in the court’s charge a full and complete and *130correct charge on this issue, and in same the court told the jury that if they had a reasonable doubt as to the presence of appellant at the time and place of the killing, they should acquit him. In our opinion this substantially presented the law covering appellant’s second contention.
Finding no error in the record, the motion for rehearing will be overruled.
Overruled.