Hall v. State ( 1955 )

On Rehearing

HARWOOD, Presiding Judge.

In his application for rehearing counsel for appellant finds fault with our statement that Hall’s car continued some 150 yards after he was struck.

One of appellant’s principal witnesses, Wilmer Holloway, who, according to his testimony, was present with appellant when Hall’s car passed, testified that Hall’s car stopped “approximately 100 or 150 yards” from where appellant was working on the gate when Hall drove by.

Another witness for appellant, Walker Collins, who went to the scene a week later “he expects” though he didn’t know, testified in detail as to the distance and course of travel of Hall’s car after it left the road as evidenced by tire tracks in the adjoining field. According to this witness the car left the road 171 steps from the gate and made a circle in the field of some 53 steps.

As to whether this witness’ “steps” would materially alter Holloway’s estimate of the distance in yards we of course do not know. However the distance and course of travel of Hall’s car after' he was struck sheds no light on the main issue, for whether he travelled 150 yards or 224 steps would be facts without probative force in determining whether appellant threw a missile at Hall.

Counsel has also extracted a sentence from the written opinion of the trial judge entered on the motion for a new trial, and argues its legal correctness. This sentence is not a part of the trial court’s opinion which we quoted and approved.

We pretermit consideration of this contention, for we specifically set forth that part of the trial court’s opinion of which we expressed approval, and our approval does not of course extend beyond such quoted portion.

Application overruled.