On Third Motion for Rehearing.
In appellants’ motion for rehearing other evidence is quoted which would appear to be of like character as that which we held to afford some evidence of a conspiracy when taken in connection with other facts and circumstances of the case, and which, unlike the other, at least in part, would appear not to be subject to the objection that it was hearsay. Testimony from the witness Oscar Petty is quoted as follows: “I had a conversation with Frank Kribs with reference to my duties on the Butler lease * * * and in that same conversation he said that if we found any of them out there just to leave them where we find them and let somebody else find them. * ⅞ * We were talking one day, Mr. Kribs, Mr. Campbell and myself. We had all met there on the lease and we were talking about all of this trouble, the stealing of the stuff out there—we had -been losing some oil bearings and such like—and we were discussing what should be done about it, and Mr. Campbell asked me if I had a good gun and I told him I did, and he said, ‘Well, I want you to carry that gun on the lease and I will furnish you all the ammunition you use.’ Said he wanted me to shoot any of that hunch I caught out there around the lease, but that he didn’t want me to kill anybody.” (Italics ours.)
In passing upon appellees’ motion for rehearing this testimony was noticed, but the statement of facts discloses that it was excluded from consideration as to the Texas Pacific Coal & Oil Company. As to that defendant therefore it was just the same as if it had not existed.
We have carefully considered appellants’ motion for rehearing and are not convinced that we should make any other disposition of the appeal, and that therefore said motion should be overruled, which is accordingly so ordered.