In view of the able motion for rehearing filed by the State's attorneys we have carefully reviewed our opinion and the entire record in the above case and are unable to disabuse our mind of the belief that it is impossible to consider this record without concluding substantially that in the main we were correct in the former opinion.
In capital cases this court will assume more latitude in dealing with technicalities and distinctions than in ordinary felony cases. We do not believe the circumstances surrounding this trial, as disclosed by this record, are such as to satisfy us that the trial was had unaffected by prejudice and feeling and that in such case our duty is plain. When in doubt as to such matters in a capital case we feel that the doubt should be resolved in favor of another trial under different circumstances and further removed from the evident prejudice and feeling so manifest in the record before us.
We have concluded that we were in error in that part of our opinion in which we said: "If on the other hand, the acts of deceased in ejecting appellant from the moving car, caused in the mind of appellant sudden passion, and acting under the immediate influence thereof, and as a result thereof, he cut and thereby killed, the deceased, he might not be guilty of more than manslaughter, and this phase of the case should be presented to the jury by a *Page 565 charge applying the law to the facts." Upon mature reflection we have concluded that this part of the opinion might be erroneous and the same will be withdrawn. Otherwise the motion for rehearing will be overruled and the judgment of reversal of the case will stand.
Overruled.