This case was reversed on original submission and the State's motion for rehearing was granted. It is, therefore, not necessary to pass on appellant's application for permission to file motion for rehearing. He has that right under the rules.
This case has occasioned unusual consideration by all members of the court, particularly on the evidence bearing on the question of jurisdiction. We concluded that the evidence as presented left the matter for the jury to determine, and this they did contrary to appellant's contention. It is true, as contended in appellant's motion for rehearing, that a map is found in the record on which are some pencil marks apparently placed there by someone other than the maker of the map. The evidence fails to disclose who did do so in such a way as to enable this court to accept this proof as conclusive. The matter as to the location of the scene of the tragedy was still a controverted issue and the jury has settled it.
All questions raised by appellant in his motion for rehearing were thoroughly considered by the court on the State's motion, *Page 450 as well as on original submission, and, we think, sufficiently discussed in the opinion on rehearing to make clear our position. The county surveyor testified positively that the crime was committed in New Mexico, while the deputy sheriff, with equal positiveness, asserted that the spot was in Texas. The argument presented in this motion goes to the weight of the evidence and that was a matter which the jury, in all probability, duly considered. At least, it is their province and not within the powers of this Court.
Appellant's motion for rehearing is overruled.