Appellant requested the court to instruct the jury that his coindictees, Carl Chance, Lonnie Sikes and Olen Tyler would not be permitted to testify as witnesses for appellant even if they desired to do so. The court declined to give such instruction, and appellant complained of its refusal. By appellant's motion for rehearing our attention is directed to the fact that we said in our original opinion, inadvertently, "It was not error for the court to charge the jury that appellant's coindictees could not be legally used by him as witnesses in his behalf." What we intended to say was that it was not error for the court to decline to charge the jury that appellant's coindictees could not be legally used by him as witnesses in his behalf. The opinion has been corrected to read as it was originally intended. Article 711, C. C. P., prohibits persons who are indicted as principals, etc., from being used as witnesses for one another, but provides that if they are desired as witnesses by the accused a severance may be claimed, and if an acquittal of the one sought as a witness should result, then such party may testify in behalf of accused. It does not appear from the record that appellant sought to avail himself of a severance under the provisions of said article. It appears from the record that some of the parties named were brought into the court room for the purpose of identification, but it is not shown that counsel for the state sought any advantage by criticising appellant for not using them as witnesses; if so, another question would have been presented. (See Grille v. State, *Page 328 112 Tex. Crim. 561, 17 S.W.2d 833, and authorities therein cited.)
In our original opinion we said that on the same day of the arrest of appellant and his companions a comparison of the tread and tracks made by the yellow wheeled sedan was made with those which had turned out of the road where deceased's body was found. This comparison was made a day or two after the arrest, and the original opinion has been corrected to so state.
We remain of the opinion that the questions presented by the bills of exception were properly decided originally, and that a further discussion of them would be but a repetition.
It was so earnestly urged on motion for rehearing that the evidence was insufficient to support a conviction that the present writer has again read every word of testimony contained in two hundred and thirty pages of typewritten statement of facts. Manifestly, it is impracticable to group all the facts in an opinion without extending it to unreasonable length. The facts were analyzed and the more salient ones mentioned in our original opinion. A re-examination of the evidence leads us to the same conclusion reached upon original submission. Where there was conflict in the evidence the verdict reflects that the jury settled it in favor of the state. We have no authority to say the jury was wrong in so doing under the facts presented.
Finding nothing upon which a rehearing may properly be predicated, the motion is overruled.
Overruled.