¶1 ON MOTION FOR REHEARING.
¶2 In his motion for a rehearing appellant directs our attention to some errors in the statement of the facts set forth in the original opinion wherein we said, “Appellant had been in the armed services during which time he learned that Arval Johnson, who *500 remained at home, was paying attention to one, Dorothy Worthy, a young woman with whom appellant had associated to some extent before the war.” Upon a more careful review of the record, we find that appellant was discharged from the army on the 16th day of December, 1946; that at the time of the unfortuate occurrence he had known Dorothy Worthy only about 8 or 9 months and therefore could not have associated with her before the war. However, we do not see that the length of time he had associated with her is material since that had nothing to do with the unfortunate occurrence. We, therefore, cheerfully make this correction with the purpose that the opinion may reflect the true facts.
¶3 Our attention is also directed to another immaterial error in our former opinion wherein we said, “For a short time prior to the homicide, however, it appears that the deceased had given this assistance, contrary to the appellant’s plans”, (referring to the assistance given to Dorothy Worthy by appellant in cleaning up the place of business where she was employed). According to the record, the deceased had helped her on only a few occasions.
¶4 In the amended motion for a new trial, it is shown, among other things, by proffered testimony that appellant offered two ballistic experts at such hearing who testified on the hearing of such motion that they had examined under powerful microscopes the two copper-jacketed bullets as well as the leaden bullets found above the door of the bar, and that the markings on the copper-jacketed bullets were clockwise, while the markings on the leaden bullet were counter-clockwise, and that the leaden bullet could not have been fired from the same pistol that the copper-jacketed bullets were fired from.
¶5 The testimony of the State’s witness, Dorothy Worthy, shows that on the morning of the tragedy, she and the deceased were in the building operated by Mr. Christian; that appellant approached them with a pistol in his hand, and “he told us both to come down to the end of the bar and stand there; that he was going to kill us. … He was holditig the gun on us in his left hand, and he never did take it off.” Then appellant took a bottle of whisky out of his pocket and said, “Let’s have a drink. … * Before we die we are taking one more drink.” Deceased offered to shake hands with appellant and forget their differences, whereupon appellant said, “I am not listening to any of that. Nothing you say will do any good. I am going to kill all three of us.” Appellant was about eight feet from the deceased at *501 that time. Miss Worthy claimed to be sick and asked to be allowed to go into the ladies’ rest room, which appellant permitted her to do. While therein she removed her shoes. She came out and ran towards the back door when she heard a gun fire. She then heard two more shots. When the second shot was fired, she heard the deceased scream like one in pain or anguish, and then she heard the third shot fired. She ran into a filling station and hid herself. She further testified:
¶6 “I first noticed that bullet hole over that back door after we came back from the police station. … The back door is located so that if he shot at me while I was running the bullet could have hit right over that back door there.”
¶7 Appellant admitted that he talked to Mrs. N. J. Story (with whom Dorothy Worthy lived) after the shooting, but denied her testimony in which she said that on the morning of the killing she talked with him over the telephone and that he asked her if Dorothy was there; that upon her stating that she was not sure, appellant said, “Well, I just shot Johnson, and made sure that he was dead before I left him, and would have gotten Dorothy also had she not run from the building.” Mrs. Story then said, “Dorothy is not here. … Where are you?” He replied, “That’s none of your business,” and hung up.
¶8 It is shown that soon after the shooting, an officer and Mr. Christian (the proprietor of the bar where the shooting took place) came upon appellant as he was walking upon the street; that they stopped the car in which they were riding; that Mr. Christian called appellant and started towards him; that appellant told them not to come any closer or he would shoot them, whereupon the officer told appellant who he was; that appellant answered that he did not care, and then said that he would give his pistol to Mr. Christian, which he did. The pistol was a .380 automatic. It had one cartridge left in the clip thereof. These men then went back to the bar where the shooting took place and discovered a bullet hole over the back door of the back room leading to the outside. The hole was about six or seven inches above the facing of the door. It was a fresh place, and there had been no bullet scar above that door before that day. The officers on that day found two empty .380 hulls there; and on the day after the killing Mr. Christian found a third .380 hull under a lattice behind the bar of his place, about five or six feet from where the body lay. All three hulls and the three bullets were introduced in evidence upon the trial.
¶9 The homicide occurred early in the morning of January 20, *502 1947, and on the following day (January 21st), appellant employed two attorneys who filed an application for a writ of habeas corpus, which was granted and bail refused on January 25, 1947. All three bullets were present and introduced at such trial. However, only two hulls were introduced at that time. The indictment herein was returned on January 24, 1947.
¶10 It is unquestioned that appellant fired three shots. This is attested to by witnesses who heard the shots, and also by appellant who testified.
¶11 “I fired three shots to the best of my knowledge. I do not know what shot it was when he cried out in pain. He hollered when I shot him, or screamed. I fired three shots altogether, to the best of my knowledge. He didn’t say anything when he screamed.”
¶12 When the deceased was shot, he had nothing in his hand, and no weapon was found on his body. Two bullets entered his body, he being about eight feet away from appellant when shot. Appellant further testified:
¶13 “I do not know what became of the other bullet. I was pointing the gun at him. He did not fall when the first shot hit him. When one shot hit him he screamed; he hollered a little. I shot three times all at once.”
¶14 This cause was tried on March 14, 1947, and on April 9, 1947, a motion was filed by appellant’s attorneys requesting, among other things, to be allowed to have these bullets examined by a ballistic expert, such motion being supported by affidavits of appellant’s attorneys. One of the affidavits of such attorneys stated that immediately after the argument herein had been concluded and while the jury was deliberating, the attorney took these three bullets to a window where the light was good, and with a small magnifying glass, he discovered that one of the bullets had come out of a gun with counter-clockwise markings, while the other two bullets evidenced clockwise markings, thus showing that the leaden bullet found over the door came from a different gun than did the two bullets found in the body of the deceased. It will be noted that it took this attorney only a few moments to find these different markings on these bullets, although the bullets had been present in both hearings hereof.
¶15 In our original opinion, we were mistaken relative to the time of the filing of the motion to be allowed to have a ballistic expert examine these three bullets. This motion was not filed *503 during the trial hereof but was filed on April 9th, 1947, which was 25 days after the completion of the trial on March 14, 1947.
¶16 The affidavit in question of one of appellant’s attorneys shows, among other things, the following:
¶17 “After the conclusion of the argument, and immediately after the jury had retired, I obtained said bullet from the court reporter and went to a window where the light was better than in the middle of the courtroom, and examined said bullet through a small magnifying class, at which time I discovered that the grooves made by the rifling in the barrel of the pistol from which the bullets with the copper jackets were fired were clockwise, and that they appeared to be counter-clockwise on the said lead bullet, which would show as a physical fact that said lead bullet could not have been fired from said pistol, which had clockwise rifling in the barrel.”
¶18 There is no question but what the proof shows that three shots were fired by appellant, all three in the general direction of the door through which Dorothy Worthy fled, two of the bullets .finding lodgment in the body of deceased and the third one evidently missing him. It also seems fairly evident that the second shot was the first bullet to strike the deceased because he screamed at the second shot. We think the position of the leaden bullet could have had no material bearing on this case. Evidently the third bullet went somewhere, and its final resting place was but an immaterial matter, all of them, however, being fired in the direction in which Dorothy Worthy fled. It seems fairly inferable from the testimony of Dorothy Worthy that appellant intended the bullet for her, and from Mrs. Story’s testimony that it was intended for Miss Worthy and that he would have gotten her had she not fled. We think it was an immaterial matter as to who fired the instant leaden bullet, appellant having admitted that he fired a third bullet which did not strike the deceased, and the testimony showing conclusively that a third bullet was fired; whether the leaden bullet was the third or first shot being an immaterial matter, a third one was fired as shown by the testimony.
¶19 Again, we think the appellant’s attorneys evidenced a lack of diligence in examining these three bullets, all present at the habeas corpus trial and also during this trial; and while the jury was deliberating on the verdict, the attorneys ascertained by a short inspection thereof that the leaden bullet could not have come from the same pistol as did the copper-jacketed bullets found in the dead body and that they did not call this to *504 the trial court’s attention until 25 days thereafter. Had they done so at the time of this discovery by appellant’s attorney, the jury could have been recalled and the matter of the bullets gone into. We also think that this conduct evidences a lack of diligence upon their part as found by the careful trial court in his order overruling appellant’s motion for a new trial, which reads in part as follows:
¶20 “The Court finds from the evidence there was insufficient diligence used to procure what is called ‘newly discovered evidence’, and that there was no newly discovered evidence which would have probably changed the result, and that the affidavits as to defendant’s mental condition are but expressions of opinion based solely on friendship, and there was no suggestion or hint of insanity until said amended motion for new trial was filed, and would not change the result.”
¶21 In view of the undisputed testimony that appellant fired three shots in the general direction of the door through which Miss Worthy fled supports the trial court’s finding that the newly discovered evidence would not probably change the result; and his finding that there was insufficient diligence in discovering the newly discovered evidence appears justified under the record.
¶22 Furthermore, we think the claimed newly discovered testimony as to the insanity of appellant evidences a lack of diligence to discover same and its probable lack of truth.
¶23 We think the trial court was correct in overruling the motion for a new trial, and the motion for a rehearing will be overruled.