I concur in all of the majority opinion, except that portion of Paragraph VIII criticising an instruction dealing with the testimony of Lloyd Hopson. I do not agree that, "This instruction is clearly a comment upon the evidence. It singles out the testimony of Lloyd Hopson and places undue emphasis upon it. In effect it tells the jury to believe Hopson if Shields had any arrangement with Hines."
The jury was correctly told that Hopson's testimony should be considered by it only in the event it found a conspiracy to burn the store existed at the time of such alleged conversation. The instruction does not assume that such conversation occurred, since it refers to it as an "alleged conversation." If the jury did not find such conspiracy existed, it should not consider such alleged conversation. If it did find the conspiracy existed *Page 406 and did find such conversation actually occurred, then the jury was authorized to consider "such conversation along with the other evidence in the case." It was a proper instruction and favorable to defendant. I therefore concur in the result.Higbee, P.J., concurs herein.