APPLICATION FOR REHEARING
No. 109. Decided April 3, 1943
BY THE COURT:This matter is before us upon the motion of the defendant-appellant, Glenn Vicory, for a rehearing for four enumerated reasons:
(1) That the judge in writing the decision misstated the facts as established by- the transcript;
(2) The proper consideration was not given to the appeal of the defendant-appellant herein;
(3) The decision was rendered without considering the evidence of the defendant-appellant herein; and
(4) For all other reasons apparent upon the face of the record.
Were it not for the fact that the court has had experience where counsel, in the zest for the interest of their client, have made comments upon the court’s opinion, the apparent temper of which is not justified by the facts, we might be disturbed by the apparent harshness of counsel’s language. Counsel might easily realize that frequently the briefs are not so clear as to make the court’s comments thereon infallible in accuracy. Counsel’s over-critical view of a court decision should not move the court to make a discourteous rejoinder.
The defendant in this case, who .has been convicted of a serious offense, must be given every favorable consideration.
Of course he starts out in this court in a rather unfavorable position. He has been convicted by a jury of his fellow citizens and that conviction has stood against the examination of the trial court on a motion for a new trial. While.a court of review is at liberty to rely heavily upon the decision of the trial court, on the ground that he has had the opportunity to hear the witnesses *26testify orally, to observe the conduct of the parties and to listen to the argument of counsel at greater length than a reviewing court may give to the case, this court is conscious of the fact that it is required to pass upon all errors complained of, and if the court has inadvertently omitted one, possibly is due to the fact that counsel has confused their allegations of error in order to make an impressive enumeration.
Counsel assert in their first brief the fact that, of all the errors complained of they insist only upon one and that was the introduction of the testimony in reference to the hat and pistol found at the scene of the wreck. After having searched diligently among the original papers for the docket and journal' entries, we secured a copy of the same from the clerk of the court, accompanied, however, by the statement that the docket and journal entry was furnished on July 17th. The transcript shows good reason why the court may have been confused somewhat in reference to matters touched upon in his former decision. Many of the entries were nunc pro tunc, and in a number of them there was no designation of which of the two defendants was referred to in the particular' entry. The brief of counsel did not clearly indicate which of the two he was representing.
However that may be, the court has gone over the matter carefully, reexamining the evidence and the alleged errors and while the member of the court who wrote the opinion is willing to concede that there may be some inaccurate references to one or the other of the defendants, yet we find that if that be a fact it does not in any way require that this court reverse the judgment of the trial court. Both defendants were present at an armed robbery and participated therein and each was sufficiently identified. We do not believe it would accomplish anything by restating the evidence in this case.
Motion for rehearing denied. Cause remanded.
BARNES, P.J., HORNBECK and GEIGER, JJ., concur.