
    BOAZ v. STATE.
    (No. 5508.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1920.
    Rehearing Denied June 15, 1921.)
    1. Criminal law <&wkey;598(5) — Defendant held not entitled to continuance because of lack of diligence in securing witness.
    Where about 14 days elapsed between the filing of indictment for murder and issuance of defendant’s subpcena, which was returned not executed in about three days, and the case was set for trial about 10 days thereafter, during which time no further effort was made to secure the witness’ attendance, and the affidavit of the witness attached to the motion for new trial indicates that he was at San Antonio, in the army, so that a casual inquiry at camp headquarters -Would have disclosed his whereabouts, held that affidavit indicates that by exercise of diligence the defendant could have secured the witness’ attendance, and hence was not entitled to a continuance.
    2. Criminal law <@=>598(5), 939(2) — Defendant not entitled to continuance or new trial for absent witness where not diligent in discovering witness’ whereabouts.
    Where defendant, prosecuted for murder, had a subpcena issued for a witness, a resident of the county, and the return of subpoena disclosed that witness had left a year before, and was in the army, so that the return indicates that knowledge of his departure, if not possessed by defendant appellant, could have been acquired by the ase of diligence, and witness’ deposition taken, and if the subpoena had been issued soon after indictment, such information would have come to defendant in time to secure the witness, defendant was not entitled to continuance because of lack of diligence.
    3. Criminal law <&wkey;94l (2) — Refusal of new trial for cumulative evidence held not abuse of discretion.
    In a prosecution for murder, the trial judge did not abuse his discretion in failing to grant a new trial for absence of witness who could give evidence of deceased’s having admitted his correspondence with defendant’s wife and defendant’s jealousy, where it was disclosed by evidence without controversy that such clandestine correspondence was conducted between the deceased and the defendant’s wife, such being merely cumulative evidence upon an uncon-troverted issue, and testimony of another witness of an uncommunicated threat by deceased against defendant, where there was also evidence of a communicated threat.
    4. Witnesses <&wkey;53(4) — Where defendant proved by his wife that she occupied room with deceased at hotel; it was proper for state to develop from her that no criminal conduct took place.
    In a prosecution for murder, where defendant appellant introduced his wife as a witness, and proved by her that she had met deceased and occupied a hotel room with him for several hours with doors locked, it was proper for state, on cross-examination of the wife, to develop that at this meeting no criminal conduct took place, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 811, providing that when the detailed act, declaration, or conversation is given in evidence any other act or declaration necessary to make it fully understood may also be given in evidence.
    5. Criminal law'<&wkey;829(5) — Instruction that defendant could arm himself in anticipation of attack by deceased not required where jury instructed on self-defense against apparent danger.
    Where, in prosecution for murder, the jury were instructed upon self-defense against apparent, as well as real, danger, and upon defendant’s right to act upon a demonstration by deceased manifesting an intent to carry out a threat, it was not incumbent upon court to instruct that defendant had right to defend himself in anticipation of an attack by deceased, particularly where it was instructed that defendant had right to seek deceased, and in doing so to arm himself.
    6. Crimina! law <&wkey;829(5) — Failure to repeat instruction that defendant could use any means at his command to protect himself, and was not bound to retreat, was not error.
    In prosecution for murder, where the jury was instructed that the defendant had a right to use any means at his command to protect himself from deceased, who had threatened his life, and that he was not bound to retreat, it was not error to fail to repeat the instruction at the request of the defendant, in reference to instruction on the law of communicated threats.
    7. Criminal law <&wkey;829( 18) — Refusal to charge upon matters covered by another charge not error.
    Where a general instruction that the burden was upon the state to show defendant guilty beyond a reasonable doubt was embraced in the general charge, and the jury were instructed fully on the law of threats, requested instructions which were no more than substantial repetitions of the main charge on such matters were properly refused.
    8. Homicide <&wkey;300(7) — Failure to instruct that defendant couid continue to shoot as long as danger from deceased continued, as viewed from defendant’s standpoint, held not error.
    In prosecution for murder, failure to instruct at defendant’s request that he had right to continue .to shoot as long as the danger continued, as viewed from his standpoint, was not error, where such charge was rendered unnecessary by the circumstances, including an instruction that, if the first shot inflicted mortal wounds, and in firing it appellant was acting in self-defense, they would not consider as a circumstance against him that he fired additional shots, where the evidence showed that each of the wounds was fatal, there being no evidence to require the requested instruction.
    On Motion for Rehearing.
    9. Criminal law <§=51038(1) — Objection to instruction not made at time of trial will not be considered.
    Assignment of error in an instruction will not be considered where no exception was presented to the court specifically pointing out the omission claimed by the assignment, in view of, Vernon’s Ann. Code Cr. Proc. 1916, art. 743, providing that objections to special charges shall be made at time of trial.
    10. Criminal law <&wkey;829 (5) — Refusal to charge jury to view facts as they appeared to defendant at time of killing was not error where jury was instructed on self-defense from apparent dianger.
    In prosecution for homicide, it was not error to refuse a requested instruction that jury should place themselves as nearly as they could in the place of defendant at time of homicide, and view all facts as they appeared to him, from his viewpoint, and not as they appear to jury now, where the court had instructed on the right to defend from apparent danger.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    E. H. Boaz was convicted of manslaughter, and he appeals.
    Affirmed.
    Baskin, Dodge, Eastus & Ammerman, of Fort Worth, Puckitt, Mount & Newberry and Reid Williams, all of Dallas, and Black & Smedley, of Austin, for appellant.
    J. Willis Pierson, Dist. Atty., M. T. Lively, Cavin Muse, Robert B. Allen, and Robert B. Allen, Jr., all of Dallas, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant shot and killed McDowell. Indicted for murder, he was convicted of manslaughter, and his punishment fixed at confinement in the penitentiary for a period of five years.

The appellant was about 34 years of age, had been married about nine years; his wife was about 31 years of age, and there was one child. Before the marriage deceased had been a suitor of appellant’s wife, and after the marriage there had been conducted between the deceased and Mrs. Boaz a clandestine correspondence, and interviews had taken place, of which the appellant was ignorant at the time. A few days before the homicide, Mrs. Boaz, with her child, left her home in Memphis, Tex., and disappeared. The appellant went to Dallas in search of her, and made inquiry of the deceased over the phone touching her whereabouts, and was denied information. Appellant went to Navarro county in search of his wife, and there, in conversation with a friend of hers, learned of clandestine correspondence that had taken place some time before. He had in the meantime intercepted some of the letters from the deceased, and had concluded from them that the relations between the deceased and his wife were suspicious, if not criminal, and in one of the letters there .was embodied, according to the evidence, a threat against the appellant. Returning to Dallas, the appellant went into a barber shop in which the deceased worked, though appellant had not seen him for a number of years, and, according to his theory, did not know him. The deceased, 'taking a satchel or grip, and putting some articles in it, left the barber shop, and the appellant, hearing the name of the deceased called, followed him, and, according to his theory, overtook him while the deceased was in the act of putting his grip into an automobile; and, upon appellant’s accosting deceased and seeking information, the deceased assumed a hostile attitude, and attempted to open the grip, as appellant believed, to secure a pistol, whereupon the appellant shot. There was testimony introduced to the effect that a .pistol was seen in the grip in the car of the deceased after the homicide. This, however, was controverted.

It was shown by Mrs. Boaz, who was introduced as a witness on behalf of her husband, that a clandestine correspondence had been conducted between her and the deceased, and that on one or more occasions she had met the deceased in a hotel in Dallas, and had been alone with him in a room with the door locked for a considerable1 time; that on the occasion of her disappearance she had come to Dallas, and had seen the deceased, and had a meeting with him of the kind described above in the hotel. She also testified upon behalf of appellant that there was a threat against the appellant in one of the deceased’s letters, which had come to the knowledge of the appellant, and that, because of the knowledge acquired touching the correspondence, appellant was furious.

The state’s theory and testimony indicated that the appellant went into the barber shop where the deceased worked, wearing a handkerchief over his face as a means of disguise, and that, when the deceased left the shop, the appellant followed him; that, before leaving, McDowell stated he was going out to shave a man, and would be back soon. There were three wounds on the deceased, each of them entering the back. A state witness said that, while talking to a man on the street, his companion said, “Look,” and he saw McDowell running, and the appellant following him. They were about 40 or SO feet apart; that he saw the first shot fired, which was fired when they were about 50 or 60 feet distant from each other. The deceased was running, had nothing in his hands that could be seen. They continued to run until the third shot was fired, when McDowell fell; that between the first and the third shots McDowell ran something like 90 feet. Another witness said he saw McDowell put something in the ear, and turn as though to crank the car; that he looked up, and appeared surprised and startled, and then turned and ran fast, and the witness saw the appellant with a pistol in his hand. The parties went out of the sight of the witness before the first shot was fired.

The refusal to grant a continuance is made the subject of complaint. The absent witnesses named in the application were Albert Wesley and Joe Davis. It is charged in the application, which was the first, that Joe Davis was a resident of Memphis, Tex., but temporarily stationed at Camp Travis, in San Antonio, and was a member of 353d Motor Truck Company. The indictment was filed on March 11, and the day fixed for the trial was April 8. A subpcena was issued for Joe Davis at the address mentioned in the application March 26, and returned not executed on the 29th of March, 1919. We have discovered in the record no reasons stated for the failure of the appellant to apply for the subpcena for the witness at an earlier date. Fourteen or fifteen days elapsed between the filing of the indictment and the issuance of the subpoena. In the meantime, the case was set for trial the 8th of April. The subpoena was returned not executed some 9 or 1Ó days before the date of trial, and the record shows no effort of the appellant after the subpoena was returned to secure the attendance of the witness. The affidavit of the witness attached to the motion for a new trial indicates that,'during all of the time from March 6 until after April 8, he was at San Antonio with Motor Transport Corps No. 353. In his affidavit it is stated:

“That he was in said camp continuously from the 6th day of March, 1919, and a casual inquiry at Ms camp headquarters would have dis-' closed Ms whereabouts between said date of March 6 and April 8, 19X9.”

TMs affidavit indicates that by the exercise of diligence the appellant could have secured the attendance of the witness. The fact that the subpoena was returned on the 29th day of March, 3 days after it was issued, with the statement by the officer that the witness had not been found, would not, we think, excuse further effort on the part of appellant to procure his attendance. The case of Todd v. State, 57 Tex. Cr. R. 26, 121 S. W. 506, is in point. The indictment was filed January 23. The subpoena was returned the 27th day of January, and the trial began the 2d of February. The accused having failed to apply for other process, Ms diligence was held incomplete. Other cases in point are Holmes v. State, 38 Tex. Cr. R. 370, 42 S. W. 996; Cromwell v. State, 59 Tex. Cr. R. 525, 129 S. W. 622; Jones v. State, 65 Tex. Cr. R. 69, 144 S. W. 252; Giles v. State, 66 Tex. Cr. R. 638, 148 S. W. 317; Dean v. State, 29 S. W. 477; Stephens v. State, 69 Tex. Cr. R. 437, 154 S. W. 996.

The subpoena relied on for Albert Wesley was issued the 5th day of April, and in the return it is disclosed that he had left for Virginia a year before, and was in the army. Wesley was a resident of Dallas county, and the return on the subpoena indicates that knowledge of his departure from! the state, if not possessed by the appellant, could have been acquired by him by the use of diligence, and the deposition of Wesley taken if desired. And apparently, if the subpcena for him had been issued .soon after the indictment was filed, the information would have come to appellant by means of a return on the subpoena within time to have taken his deposition.

The witness Davis, if present, would have testified that about a year before the homicide he was in the barber shop in the Oriental Hotel, and the barber shaving Mm stated that he was the suitor of Mrs. Boaz before her marriage, and that before she was married she was a good woman, and that Dr. Boaz was no man at all, and had caused her' to do as she had, and further stated that Dr. Boaz knew of correspondence with Ms wife, was jealous of the barber, and was watching him ; that the barber further stated that he was expecting trouble with Dr. Boaz, and would be prepared to protect himself against him. By the witness Wesley the appellant expected to show that he carried letters written by appellant’s wife to deceased, and by the deceased to her. In passing upon the motion for a new trial, the court had before it the evidence in the case, which disclosed without controversy, as we understand the record, that a clandestine correspondence was conducted ' between the deceased and appellant’s wife. The testimony of Wesley, therefore, was but cumulative upon an uncontroverted issue. The testi- . mony of Davis was in part upon a similar issue, though it also tended to show an un-communicated threat made by the deceased against the appellant. This evidence would have been admissible as bearing upon the question of self-defense, but, inasmuch as it was shown by the evidence, and not disputed, that the deceased had made a threat against the appellant which was communicated to him, we would not feel warranted in holding that the evidence was so important as to show an abuse of discretion by the trial judge in failing to grant a new trial for the absence of the witnesses, the diligence to secure his attendance, falling short of the legal requirements.

The appellant having introduced his wife as a witness, and proved by her that she had had clandestine correspondence with the deceased, and had met him at the Oriental Hotel in Dallas and occupied a room with him for several hours with the doors locked, the cross-examination of Ms wife, developing that at tMs meeting no criminal conduct took place, was, we think, germane to the direct inquiry and legitimate cross-examination. The appellant having on Ms direct examination disclosed the meeting between Ms wife and the deceased, it was proper for the state to interrogate her as to all that took place between them. Their conduct while in the room was a legitimate subject of inquiry. It was a part of the same transaction, and was within the statute which says:

“When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.” Vernon’s Ann. O. O. P. art. 811.

Appellant having called Ms wife as a witness to prove a part of the transaction, she became competent to prove it all.

The court instructed the jury upon self-defense, embodying the right to defend against apparent as well as against real danger, and also charged upon appellant’s right to act upon a demonstration manifesting the intent upon the part of the deceased to carry out a threat. The charge in no way qualified or abridged the right of perfect self-defense. In this state of the record, it was not incumbent upon the court to instruct the jury that appellant had a right to arm Mmself in anticipation of an attack from the deceased. The complaint of his failure to do so, however, is not tenable, for the further reason that the court gave a charge prepared by the appellant to the effect that the appellant had the right to seek the deceased, and in doing so to arm himself, and that Ms so doing would not be considered as a circumstance against him, and would in no wise impair liis perfect right of self-defense. Williford v. State, 38 Tex. Cr. R. 393, 42 S. W. 972; Alfred Smith v. State, 81 Tex. Cr. R. 368, 195 S. W. 595.

The court, in the thirteenth paragraph of his charge, having instructed the jury that the appellant had the right to use any means at his command to protect himself, and that he was in no event bound to retreat, was not in error in failing to repeat the instruction at the request of the appellant. And the same is true with reference to the law of communicated threats. Nor does it occur to us that in charging on the law of threats the court failed to instruct the jury to grant the appellant the benefit of reasonable doubt. The instruction given was to the effect that, if they believed that the appellant had been informed that a threat had been made, and that at the time he shot the deceased the latter did, or was doing, some act, or spoke some word, which from appellant’s standpoint appeared to him to indicate or manifest an intent on the part of the deceased to carry such threat into execution, the killing would be justifiable; and in the succeeding paragraph the jury was instructed that, if they believed beyond a reasonable doubt at the time the appellant shot him the deceased did or was doing no act, or spoke no word, which from appellant’s standpoint reasonably appeared to him to indicate or manifest an intention on deceased’s part to carry the threat into execution, then the appellant could not justify upon the ground of threats.

A general instruction to the effect that the burden of proof was upon the state to prove the guilt beyond a reasonable dorrbt, and that in case of a reasonable doubt they would acquit, was embraced in the charge. We find no exception to the charge upon the ground that the law of reasonable doubt was not sufficiently charged on. The criticism in the brief of counsel is based upon the refusal by the court to give certain instructions requested by the appellant. These instructions, so far as they relate to the subject of 'the law of threats, were nothing more than substantial repetitions of the paragraphs of the main charge upon that subject. They were no more definite upon the subject of reasonable doubt than was the main charge, and no special charge, specifically directed to the amendment of the supposed omission in the court’s charge to fully instruct on the law of reasonable doubt, appears to have been requested. The rule of law applicable to the matter in hand, we think, is given in Powell’s Case, 28 Tex. App. 398, 13 S. W. 601, from which we quote:

“With respect to the charge on threats and self-defense, the objection is urged that it requires the jury to believe that the facts existed which constituted self-defense before they could acquit defendant, whereas the law is that if they entertained a reasonable doubt of the existence of such facts they should acquit him. In this case the court charged the rule of reasonable doubt generally, making it applicable to the whole case, and under repeated decisions of this court this was sufficient. McCullough v. State, 23 Tex. App. 620; Ashlock v. State, 16 Tex. App. 13; Barr v. State, 10 Tex. App. 507."

Instances in which this rule has been approved are numerous. See Rose’s Notes on Texas Reports, vol. 5, p. 775; Simpson v. State, 81 Tex. Cr. R. 389, 196 S. W. 835; Head v. State, 82 Tex. Cr. R. 214, 198 S. W. 581, and cases collated; Clay v. State, 75 Tex. Cr. R. 387, 170 S. W. 744; Vernon’s Tex. Crint. Stats, vol. 2, p. 684.

Complaint is made of the failure to instruct the jury at the request of appellant that he had a right to continue to shoot as long as the danger continued, as viewed from his standpoint.' The necessity of such a charge in a given case depends upon the facts and the manner in which the issues are submitted to the jury. Clark v. State, 56 Tex. Cr. R. 295, 120 S. W. 179; Smith v. State, 57 Tex. Cr. R. 455, 123 S. W 698; Woodward v. State, 54 Tex. Cr. R. 89, 111 S. W. 941, There are cases in which such a charge is required to protect the accused under the law of manslaughter. These are cases, however, in which the conviction is for murder. Lagrone v. State, 84 Tex. Cr. R. 609, 209 S. W. 411. There being no charge submitting the theory that the appellant fired the subsequent shots after the danger had ceased, the inquiry is, Does the evidence suggest that in firing the subsequent shots he was under a reasonable apprehension, as viewed from his standpoint, that the danger continued? Lynch v. State, 24 Tex. Cr. App. 350, 6 S. W. 190, 5 Am. St. Rep. 888; Faubian v. State, 83 Tex. Cr. R. 234, 203 S. W. 898; Thompson v. State, 85 Tex. Cr. R. 144, 210 S. W. 801, and cases cited. The court instructed the jury in a special charge that, if the first shot inflicted a mortal wound, and that in firing it the appellant was acting in self-defense, they would not consider as a circumstance against him that he had fired additional shots, or inflicted upon the deceased additional wounds, which were not fired or inflicted in self-defense. The evidence tended to s~how that each of the wounds was fatal. Looking to the evidence, it appears from appellant’s testimony that he followed the deceased out of the barber shop for the purpose of conversing with him. 1-Ie had seen the deceased put something in a satchel, and carry it with him out of the barber shop. Appellant saw deceased at his automobile, and the appellant said:

“He said he didn’t care to have any conversation with me, had had all he wanted out of me, and began to dig in the grip which he had in the automobile, and I reached for my gun. At that time he started back, and I shot him. I thought he was going after a gun in the grip, is the reason I shot. I could not tell what it was, but I saw him put something in the grip, and he was taking it out, trying to open it, and when he saw me pull my gun he started away. He was looking at me when I pulled my gun. I don’t know how many times I shot. I don’t know whether he turned and ran. I don’t know anything at all about that. I don’t know whether he stayed there or not. I know I shot. I saw him going into the case. He said angry words. I don’t know whether I was shooting him to death as he was running from me. I ‘don’t know that I shot him three times in the back; cannot recall 'anything after I shot him.”

The state’s theory and testimony is that when the deceased saw the appellant he fled, and that when the first shot was fired they were 40 or 50 feet apart, and that the deceased continued running, the appellant pursuing him, the distance between increasing; that all the shots took effect in the back; that the deceased at the time he fled was without arms. Neither in the testimony of the state nor the appellant do we find any evidence which impresses ús as raising an issue calling for a charge .upon appellant’s right to continue to shoot. Viewing the state’s testimony, there was no issue of self-defense — the deceased was fleeing, he was unarmed, he had abandoned the difficulty. In its strongest light, the appellant’s testimony raises the issue of self-defense upon previous threats and apparent danger at the time he ¡fired the first shot. He disclaims any knowledge of what subsequently occurred, and, so far as we are able to discern, there is an absence of evidence which requires a charge instructing the jury that the appellant had the right to continue to shoot while, viewed from his standpoint, the danger existed. There was never any danger, real or apparent; from the state’s testimony, the deceased was fleeing from the start. -The appellant discloses what operated upon his mind at the time he first fired, but furnishes by his evidence no basis for an affirmative charge that the subsequent shots were fired in the belief that the danger had not ceased.

After a careful examination and consideration of each of the matters presented for review in the record, we are constrained to conclude that no error is disclosed which would justify or authorize a reversal of the judgment.

It is therefore affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists in his' motion for rehearing that the trial court erred in the fourteenth and seventeenth paragraphs of his charge in shifting the burden of proof on the defensive issues, and that these matters were sufficiently pointed out by the special charges Nos. 5 and 11, which were refused, and that our opinion heretofore rendered is erroneous.

No objection is made now to the fourteenth and seventeenth paragraphs, except that they should have concluded with a statement, “or if you have a reasonable doubt thereof.” Without going into a discussion of the many cases cited by appellant in his brief, we de-; sire to revert to the acts of the Legislature in 1913, art. 743, Vernon’s O. O. P. No exception was presented to the court’s charge specifically pointing out an omission in the particular now complained of, and while the special charges requested contained a proper clause with reference to the “reasonable doubt” as applied to the defensive issues, yet there was nothing in the special charges, or in any objection to tbe main charge, to pertinently call the court’s attention to the matter now urged as error. The last clause in article 743 reads:

“And all objections to the charge and on account of refusal or modification of special charges shall be made at the time of the trial.”

If what is now urged as such a serious objection was at the time of the trial over-i looked by the able attorneys representing appellant, is it likely any great harm befell appellant by reason thereof? The jurors knew very well what the main issues in the case were, and it is not to be presumed by this court that they indulged in the refinement of analysis in the consideration of the case as do attorneys in discussion of legal propositions. Por the court to hold that the requesting of a special instruction, which the trial court could legitimately .consider as a substantial repetition of his main charge, can take the place of an objection which should pertinently point out the matter complained of, would virtually work a repeal of the statute. We do not desire to be understood as holding that, where the special charge goes to some substantial matter, it would not in some cases be erroneous to refuse it, even though no objection was presented because of its omission from the main charge; yet, where the complaint only goes to the omission of a few words, we feel that, in jus-' tice to the trial courts, and to make effective the law referred to, objectionable omission should be pointed out by exception then made. The case of Walker v. State, 229 S. W. 527, presents' very much the same situation, and sustains what we have written.

In the brief and argument upon rehearing we are referred to Johnson v. State, 29 Tex. Cr. App. 150, 15 S. W. 647, and the line of authorities following that case, as laying down a more correct rule than the one announced in Powell’s Case, 28 Tex. App. 398, 13 S. W. 599, and others referred to in our original opinion. Perhaps we did not make our meaning clear. Just preceding the reference to the Powell Case this language was used: “We find no exception to the charge upon the ground that the law of reasonable doubt was not sufficiently charged on,” and then follows a statement in which we were inaccurate, to. the effect that the special charges requested were no more definite upon the subject of “reasonable doubt” than was the m'ain charge. What we were undertaking to say was that, in the absence of an exception pointedly calling the court’s attention to an omission as to “reasonable doubt” applied to each defensive issue, the Powell Case announces a correct rule.

Appellant requested the following special instruction:

“You are instructed that, in passing upon the issues in this case, it is your duty to place yourselves as nearly as you can in the place of defendant at the time of the homicide, and to view all the attendant facts and circumstances as they reasonably appeared to him from his standpoint, at the time, and not as they may appear to you now.”

' We do not think it was necessary to submit this charge. The court had already told the jury that—

“It was not necessary that there should be actual danger, as a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time.”

We have carefully examined the other grounds urged in support of the motion for rehearing. They were all considered and discussed in the original opinion, and, we believe, correctly disposed of.

While we might have reached a somewhat different verdict had we occupied the place of jurors, yet, passing upon the case in the light of the record, the judgment' must be sustained, and the motion for rehearing is overruled. 
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