¶1dissenting.
¶2I respectfully dissent from the granting of the petition for rehearing in this case.
¶3As stated in the original majority opinion, I believe the trial court did not abuse its discretion in denying the Motion to Correct Error. Even if one fills in the deficiencies of the affidavit of Davis, as the majority is wont to do, we still have a situation which does not deviate materially from the evidence presented to the jury. If one assumes that Davis in fact did see appellant's boat in operation and did observe the decedent fall from the back thereof, this does not gainsay the circumstantial evidence that the victim was stunned by a blow to the head delivered by appellant and that so stunned, she fell from the back of the boat being operated at high speed by appellant.
¶4As set forth in the original majority opinion, other witnesses heard the cries of the victim as the boat travelled through the water and observed the boat return to the location where the victim apparently fell. They also observed a search light being shown on the water. I see nothing in the affidavit of Larry D. Fox, Jr. or in the affidavit of Ray Davis that contradicts the evidence which already has been heard by the jury that convicted appellant.
¶5I would deny the petition for rehearing.
¶6SHEPARD, C.J., concurs.