This case was affirmed at the late Dallas term. When the case was considered on original submission the clerk of this court at Tyler had inadvertently failed to send to Dallas the statement of facts, which had been properly filed in the court below and duly certified to this court.
The motion for rehearing reasserts the proposition, which was presented in the court below, that the verdict of the jury was contrary to the law and unsupported by the evidence, in that it failed to show that the killing was purposely done, and that the evidence did not sustain the conviction of murder in the first degree. We have treated, in considering the motion for rehearing, the statement of facts as being duly filed, and as if it had reached us in due order. The evidence raises the issue that the killing was accidental, and there is strong evidence tending to sustain this view, but in view of the fact that appellant had been frequently separated from his wife, had been living in open and flagrant adultery with another woman, had made frequent and recent threats to kill his wife, we are not prepared to hold that the verdict of the jury was without evidence to support it. We deem it unnecessary to recapitulate the evidence here, but after a careful examination of the entire case, in the light of the whole record, considering the *Page 32 facts as they appear in the statement of facts, we would not feel authorized to set aside the verdict of the jury and reverse the case on this ground.
The other questions are fully discussed in the original opinion, and require no further elaboration.
The motion for rehearing is accordingly overruled.
Overruled.