On Rehearing. Counsel for appellant, upon rehearing, takes us to task for the statement in our opinion, above, that the dying declaration of the deceased incriminated the defendant.
The statement of deceased, that "Old Man Anderson cut me", is, as we read the evidence, susceptible of no other interpretation.
The proof is absent that any other person struck deceased; nor has counsel, who now complains, furnished any enlightenment. On the contrary, he contends that the admission of such dying declaration was error. Had the deceased meant some one other than defendant, such evidence, being far from prejudicial, was substantially beneficial to his defense, therefore not subject to assertion of error for its admission. Obviously, there is no merit in the contention. The bill of exceptions must be construed most strongly against the exceptor. Schrimsher v. Carroll, 225 Ala. 188, 142 So. 547.
That juror Cruise acted as foreman when the verdict was returned or that defendant was not acquainted with him does not alter the correctness of our decision upon this point. His status was similar to that of any other juror and the defendant had the privilege, had he invoked it, of identifying him.
We have again studied the case. We have given due consideration to the propositions urged on rehearing. We are convinced that no substantial error is made to appear.
Opinion extended and application overruled.