*9ON MOTION FOR REHEARING.
GRAVES, Presiding Judge.Appellant has filed a vigorous motion for rehearing herein expressing his dissatisfaction with the original opinion in this cause.
We think that appellant in his motion has misconstrued the testimony relative to an accidental killing herein. The testimony shows a threat on the part of the appellant to kill the deceased. It further shows that appellant went behind the bar in his place of business and procured a pistol which was of the self-cocking variety and which, according to witnesses, took approximately a five-pound pull on the trigger to first cock the same and then a continued pull on the trigger to fire it. It is also shown by expert witnesses that the pistol could not be fired by striking with it, unless the trigger had been pulled with that amount of pressure. It is further shown by witnesses, some leaving a basis for the inference on the part of the jury, that the striking was first had with the pistol, and immediately thereafter it was fired once which cost the deceased his life. From the testimony we quote:
“Q. After the defendant hit your husband, what happened then? A. An instant later I heard the report of the gun.
“Q. An instant — how soon after he brought the gun down on the side of your husband’s head did you hear the discharge of the gun? A. It seemed almost seconds; almost simultaneously with the blow on his head with the gun.
“Q. What happened then? A. My husband fell to the floor,***.”
It was shown by the doctor who removed the bullet from the deceased’s head that it entered from the left side thereof just above the ear and went straight into his head and ranged slightly downward.
Relative to the theory of an accidental killing offered by the appellant, such was only a matter of inference. Appellant did . not take the stand, and no witness testified that this was an accidental shooting. The court, in an excess of caution-, charged more than once relative to an accidental killing, and in each instance left the jury to find whether such occurred or not, and instructed that if they had a reasonable doubt thereof as to its accidental, character, then they should acquit the appellant.
*10It was shown by the testimony that appellant was drinking heavily and that the deceased seems to have done something which angered him; that he went back of the bar, possessed himself of his pistol, came back, walked up to where the deceased and his wife were sitting and had a conversation with the deceased. Speaking to the deceased, the appellant said: “I am going to get my gun and kill you.” He then struck deceased over the head with the pistol. The fatal shot was fired straight into the head.
The question of an accidental shooting, if raised by the evidence, was nevertheless decided against appellant by the jury, and we think such decision finds support in the testimony.
Appellant attempts to have this case determined upon the proven fact that this death was caused by an accidental shot and that the use of this pistol as a bludgeon was the cause of the shot being fired through the head of the deceased. We do not agree that the facts must be so construed. They are also subject to a fair construction that appellant pointed this pistol at the head of the deceased and fired the shot straight through his head. Evidently such a theory was utilized by the jury, and we see no reason to disturb such finding.
The motion for a rehearing is overruled.