Appellants insists, as in his original brief, that the trial court did not adequately apply the law to the facts upon the issue of murder without malice. We have again reviewed both the charge as given and the facts in evidence, and are constrained to believe said charge fully and adequately presented the law of said issue, and applied the same to the facts. Except there be some statutory announcement of a particular fact that might form the basis for a holding that a killing would be murder without malice, the courts would have no right to tell the jury in any case that any particular fact or group of facts would be sufficient to demand or compel a verdict of guilty of murder with or without malice. The jury are the exclusive judges of the weight of the testimony, and their province can not be usurped by the charge of the court singling out or selecting any particular fact upon proof of which the jury might find for or against the accused on the issues of murder with or without malice.
We are not able to agree with appellant that the testimony of Clyde Mead, with reference to a statement made by appellant to him some months before the killing, should work a reversal of the case. As substantially stated in our original opinion, another witness named Cox, who preceded Mead upon the witness stand, testified that some hours before the killing appellant made to him substantially the same statement as was testified to by Mead as having been made to him prior thereto. We do not see how the question of remoteness enters into the disposition of the question of the admissibility of this testimony. The whole trouble arose out of the conduct of deceased toward the daughter of appellant. It is quite evident that this conduct was known to appellant at the time he made *Page 585 the statement to Mead, and the same feeling that would cause a similar remark to be made by appellant aimed at deceased, as testified to by Mr. Cox, would appear likely to have existed.
Where there are two theories in a murder case, each supported by testimony, and the verdict evidences the jury's acceptance of one such theory, this court would not feel itself warranted in declining to uphold the action of the jury because of any feeling on our part that the testimony might more strongly have supported the other theory.
Being unable to agree with appellant, the motion for rehearing is overruled.
Overruled.