In an application to reopen the case, appellant directs attention to the fact that it was stated in the opinion on motion for rehearing that Julia, the wife of the appellant, was killed. In his motion he says that she was not killed. The statement of facts shows that she was shot and leaves the impression that she was killed. However, whether she was killed or not is unimportant. The conviction is for the killing of Lucinda Daniels, the aunt of appellant's wife.
The opinion has been amended to show that within a few minutes, appellant shot Julia, his wife, and shot and killed Lucinda Daniels, her aunt. The position taken in the application under consideration that we were mistaken in stating that a few minutes elapsed between the two shots is not in accord with our understanding of the record. It is true that the beginning of the quarrel with his wife, as observed by the witness Tenie Mitchell, was about thirty minutes before the death of the deceased. From his arrival on the premises until the time he shot his wife, they were in conversation with each other. He was in possession of a gun. He protested that he had no intent to injure her. One time during the interval, according to the witness Mitchell, he was laughing and talking to the witness and said he wanted his wife to get his brass knucks; that she had mislaid them. We quote from the testimony of the witness Mitchell upon the subject:
"I said, `Julia, why don't you get his brass knucks and give them to him if you can find them.' He said she mislaid them, she can't find them. I said if they are in here I will help her find them and we went to hunting them.
It wasn't long after that until the shooting took place. After I couldn't find the brass knucks I went out of the house and left there and went to the wash place. I thought maybe somebody else could talk to them and I went and got Reverend Washington to talk to them, and while I was gone, he shot her."
After going after the Reverend Washington to talk to them, the witness returned in a few moments and found that both the wife and the aunt had been shot. The witness estimates the intervening time at five minutes. *Page 276
From the testimony of Burton, one of the eyewitnesses, these excerpts are quoted:
"I was there the day of the shooting and I saw a part of it. The part of it that I saw was, I seen when the young man shot his wife and I seen the young man and young lady come out — she was going over seemingly to the corner of the fence. . . . When I seen them they were going to the corner of the fence and I seen the young man when he raised his gun and shot; he was shooting at his wife; at that time she was going from him; she was going pretty fast but I couldn't say she was running or walking.
I saw him raise his gun and shoot her; he shot at her twice but I couldn't say he hit her; he shot at her after she fell. . . . Then when she fell down it seemed to me he broke his gun — I do not know whether he put a shell in or not — then he turned and came out of the yard, . . . and started down the track towards the boardinghouse about two rail lengths and looked back and saw this other woman coming down the track towards the quarters.
When I seen her coming she was running seemed like, she was slapping her hands together like that (witness indicating).
When he seen her he turned to meet her and went about a rail and a half length of her, he raised his gun to shoot at her; she raised her hands and the gun fired about the time she reached the gate. Yes, sir, the gun fired. She fell then and he turned and went back down the track going towards the boarding-house."
A re-reading of the testimony confirms us in the view that the proper disposition has been made of the case, as indicated in the opinions heretofore rendered.
The motion is denied.
Rehearing denied.