Appellant's motion for rehearing is directed at the complaint that this court erred in not sustaining his Bill of Exception No. 4.
This bill complains because he was not permitted to ask the witness Rudolfo Martinez about his conduct in living in adultery with a woman not his wife. In the state of the record we see no materiality whatsoever in this evidence. It is true that the jury might have viewed his testimony different from what they did, and yet his testimony so far as material to anything in the case was on uncontroverted matters. This witness heard a report of the fight outside while he was still on the inside of the saloon. He then testified that he did not see the fight while he was on the outside. Whether or not this is in conflict with anything *Page 479 that appellant testified to is not made clear. It would be rather an extreme construction for us to say that it is. From all of the evidence in the case there is little to raise an issue controverting appellant's story of a conflict between himself and others prior to the shooting. He does not tie himself to specific details and neither does the witness Martinez. The verdict of the jury finding appellant guilty of murder without malice too clearly indicates that the jury found in favor of appellant's story about others attacking him.
In our view no reversible error was committed by the procedure complained of. Appellant's motion for rehearing is overruled.