ON MOTION FOR REHEARING.
BEAUCHAMP, Judge.Accompanying his motion for rehearing, appellant presents a statement of facts which was filed with the district clerk on February 4, 1942. The clerk had failed to forward it to this court with the rest of the record. The frequency with which such inexcusable negligence causes delays in the disposition of cases as well as added expense and sometimes the defeat of the rights of parties whose liberty is at stake, is alarming. We do not feel, however, that this appellant should fail to receive full consideration because of the failure of some official to perform his full duty.
We have reconsidered the bills of exception in the light of the reflected facts and have reached the conclusion that the correct disposition was made of the case in the original opinion. As stated in the original opinion, bills of exception numbers 2, 3 and 4, relate to the admission of the testimony of the two witnesses, Holt and Wilburn. It was the State’s theory that the accused was drunk on the occasion of the homicide; that he had circulated among, the negroes-in and out.of:, a cafe and had *218threatened to “curry” some negro’s head, as he displayed a pistol; that in keeping with the threats, he came in contact with deceased and shot him in a reckless disregard for human life, either of the deceased or any other person. This was an important issue, in view of the defense of accident and lack of intention to kill. The witness Maxey was present in a small cafe where others testified that such threats had been made. Maxey denied hearing any such statements, which was tantamount to a denial that they were made, and testified affirmatively to facts contradicting the State’s evidence and supporting appellant’s theory of accidental shooting as well as self defense. On cross examination, the district attorney asked him if he had made certain statements contrary to the evidence which he had given on these two issues and if they were not made to Holt and Wilburn. He denied making such statements and the two witnesses were called and related such statements of Maxey as impeaching evidence. The court so admitted it and so restricted it in his charge. No serious objection can be lodged against this testimony. The bills were properly overruled.
Bill of exception number 5, as further interpreted by a statement of facts, fails to show error. Dr. Oates’ statement had described the wounds and he added: “I think I know what the effect of a gunshot wound on a man like that would be. In my opinion, I think it would have been a physical impossibility for a man shot as I found this man shot to close up a knife and put it in his pocket after he received those two gunshot wounds.” The doctor had examined the body and found that the two gunshot wounds entered the left breast in the region of the heart, stating that “he was almost instantly killed and all of his reflexes are relaxed.” He undoubtedly was qualified to testify that the wounds produced almost instant death. If so, the conclusion that he would not have been able to close his knife and put it in his pocket would not require expert' knowledge however much that might have aided him in reaching the proper conclusion. The fact being true that he died almost instantly, the doctor’s conclusion is of necessity true and its admission could be no error.
Bills of exception numbers 6, 7', 8 and 9 complain of the court’s charge. The only criticism which we are able to make from an examination of the court’s charge is his failure to give .'an affirmative charge on the defensive issue of intention. However, the very lengthy and technical exception to the court’s *219charge fails to point out this deficiency. No special charge was requested on the subject and the matter is not presented for the consideration of this court because it was not called to the attention of the trial court.
The appellant’s motion for rehearing is overruled.