The motion for the State is filed by the District Attorney of Travis County. It is urged in the motion that the agency of Mr. Fritzmeier was shown from the testimony of appellant given in the trial of a civil case. It may be *Page 239 true that appellant's testimony given in the civil case shows that at the date of such trial Fritzmeier was one of appellant's agents and it may have been a circumstance tending to prove that such relation still existed at the time of the transaction here in question, but as we understand the record the civil case was tried several months prior to the date of the objectionable letter which charged that the relation of agency then existed. It may also be true that circumstantially it is indicated that Fritzmeier sold Reasonover the cigarettes in question, but the charge in the letter was that the seller was then acting as agent in such sale.
We feel impelled to adhere to our original announcement upon the subject.
The State's motion for rehearing is overruled.