¶1*777ON MOTION POE EE-HEAEING
¶2delivered the opinion of the Court.
¶3In a motion for re-hearing, appellant says:
“This Hon. Court, in making an analysis of the briefs and of the transcript of evidence, for the purpose of arriving at its resolution in this case, places great emphasis on the analysis of the declaration of a witness for the state, whom it does not mention, to the effect that said -witness testified that the deceased ‘had his hands at his sides, in a normal position, and that he was unarmed.’ ”
¶4The stenographic record of the testimony of José Laguna, a witness for the prosecution, closes with the following incident :
“Judge: Did you see in what position Vigil had his hands when you passed him?
“W. — Yes, sir.
“J. — How did he have his hands?
“W. — He was calm, with his hands down, looking at the window.
“J. — -Did you see his hands?
“W. — Yes, Sir.
“J. — Did he not have them in his pockets?
“W. — No, sir.
“District Attorney: Did you observe well, or did you not notice how he had his hands?
“W. — Yes, I greeted him.
“District Attorney: That is all.’’
¶5This witness did not say that Vigil was unarmed. It was not our purpose to quote him or any other individual witness as having said that Vigil was unarmed. The statement in our opinion that Vigil was unarmed was, or was intended to be, an independent statement of fact. In any event, it was an undisputed fact.
¶6Our statement that “At least one witness for the prosecution testified that Vigil’s hands were by his side in a natural and normal position” was not a direct quotation. It was an attempt to state in one sentence the gist of Laguna’s testimony as set forth in the above extract. It was not our *778intention to stress that testimony: All reference to it might have been omitted without affecting the result in this court.
¶7Appellant now says that the sentence imposed by the district court was excessive. It would suffice to say that this point was not raised by the assignment of errors and is not a sufficient ground for rehearing. Nevertheless, we may add that we did not overlook it in our consideration of the evidence as a whole but we did not find any such abuse of discretion as to justify a modification of the judgment.
¶8The motion for rehearing must be denied.