Most of appellant's motion is devoted to an earnest and able argument against the sufficiency of the testimony, but in as much as the State's case was fully made out, if the witnesses be deemed credible, and our statute making the jury the sole judges of the credibility of the witnesses, we would not feel justified in holding the facts not sufficient.
Special charge No. 3, which he urges as appropriate, and the refusal of which he insists was error, seems to us to be covered by paragraph seven of the main charge. Said special charge sought to have the jury told that they could not convict appellant unless they believed beyond a reasonable, doubt that Taylor did burn Merriweather's house, and not then unless they further believed beyond a reasonable doubt that prior thereto appellant advised, commanded or encouraged Taylor to so burn same, and that appellant was not present when it was burned. Paragraph seven of the main charge told the jury that if they believed beyond a reasonable *Page 669 doubt that Taylor did burn Merriweather's house, but if they had a reasonable doubt of the fact that prior thereto appellant did advise; command or encourage Taylor to so burn, and that appellant was not present when same was burned, they should acquit. We state this much to made plain our belief that the special charge was covered by that part of the main charge given.
We know of no rule of law which would justify the trial court in seeking to compel a witness for either side to talk to counsel for the other side if the witness was unwilling to do, so, nor have we been cited to any authorities holding to the contrary of this view.
One who wishes to have a bill of exceptions in question and answer form considered by this court, must show in some way that the trial court deemed it necessary for this court's understanding of the matters involved, and to aid this court, that the bill of exceptions be in the question and answer form. Neither of the bills referred to, a consideration of which we declined because they were in question and answer form, contains any certificate of the trial judge to the effect just mentioned.
The motion for rehearing will be overruled.
Overruled.
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