concurred, because the defendant in the court below obtained what he asked for, to-wit, a new trial. He cannot recognize the practice of entering the opinion of a judge of this court upon the minutes of the court below as the judgment of this court. The remittitur contains the judgment, and, if lost, a second will be issued on application by the clerk of this court.
Speer, Justice,thinks the conviction was founded solely on circumstantial evidence, and would prefer referring the punishment back to the’ court below for the exercise of his discretion as to commuting the same-to imprisonment for life, bufas neither of the other judges will join him, he reluctantly concurs.