¶1 on rehearing.
¶2 — Appellant renews complaint of the refusal of his motion to postpone or continúe this case until his appeal from conviction for the killing of one Allison, could be decided by this court. Such motion should not only so allege as to make it plain that in law and fact the act and transaction for which he has been convicted, and that which forms the basis of the present prosecution, are one and the same, — but when the application is traversed by the State, as was done in this case, it must appear from the facts then heard, or from the testimony as it appeared on the trial, that the act for which the former conviction was had and that upon which the present prosecution is based, were and are the same act, transaction and offense in the eyes of the law. No facts seem to have been heard by the learned trial judge when the motion to postpone was overruled. The record before us does not seem to bear out the contention that the offenses are the same. Appellant’s own testimony makes clear the proposition that upon entry into the room in which Allison and Roberson were, he shot Allison and then turned and shot Roberson. We know of no rule either of statute or decision under which the killing of Mr. Allison could be held in law to be one and the same transaction, act or offense as the killing of Roberson, and hence it follows that we are not led to believe that appellant might successfully, plead jeopardy or conviction in this trial, even if his first conviction had been affirmed by this court.
¶3 The only grounds in the motion relate to our opinion upholding the action of the trial court in regard to arguments made by attorneys for the prosecution. These have been reviewed and are believed to be proper under the facts and the qualifications made by the trial court to the bills of exception. Nor do we believe the exception to the charge on manslaughter, also further complained of, to present any error, and conclude that the case was properly decided upon original presentation.
¶4 The motion for rehearing will be overruled. ’
¶5 Overruled.