Appellant, in his motion for rehearing, contends the court erred in holding the evidence sufficient to justify the verdict, and briefly takes issue with the court in some of the statements of the opinion. The writer does not think the case has been strongly made out, but in a review of the case by the court the conclusion is reached that the evidence was sufficient to justify the verdict.
In the qualification of one of the bills of exception by the trial judge he calls attention "to the statement made by the deceased, that the defendant had given him a drink at the forks of the road; that he (deceased) took one drink, swallowed it; that he took another, but spit it out because it was so bitter; that he (deceased) told Arch Fults that he had poisoned him with strychnine, and that he refused to drink any more of it; but that defendant followed him down the road and insisted that he take another drink; that the deceased tried to get him (defendant) to drink some of it, but the defendant refused. Also that the deceased knew that it was strychnine because it was bitter, and when he would have a convulsion, during the time he was making the statement complained of in the bill of exceptions, he would ask different ones sitting by to stick their lips to his and see how bitter it was. Also that when the defendant first came up, at Mrs. Parrish's house, the deceased told the persons there that he was going to have convulsions; that he knew that it was strychnine because it was so bitter. Also that at one time when he was making this statement Mrs. Myrtle Fults was standing by the defendant when the deceased made this statement to the father of Mrs. Myrtle Fults, in the presence and hearing of the defendant, and all of which Mrs. Myrtle Fults says she heard: `Jim, what will become of a man that will do one this way?' And that the defendant made no reply to this." This justifies the statement in the opinion that some of the accusations were made in the presence of the defendant. Appellant contends in his motion that these matters were denied by *Page 606 appellant. There is evidence to the effect that appellant denied poisoning the deceased. The bill of exceptions as qualified was accepted by the defendant without contest. The rule is, where a bill of exceptions is qualified the qualification controls the bill of exceptions, and the two together control and are superior and control the statement of facts where there is a conflict between the bill of exceptions and the evidence. Whether he denied it or not, the statements were made in his presence and hearing, and the statement by the court in his qualification to the bill is to the effect that defendant made no reply to such statement. We think, therefore, that the statement in the opinion was borne out by this quotation from the record as found in the bill of exceptions.
The opinion also recites, in a general way: "It seems that trees had been poisoned and appellant and one or more of his brothers had been accused of that act." This statement may be perhaps a little strong. The record shows in this connection that there was considerable talk in the community with reference to poisoning trees. Appellant and his brother testified to the effect that appellant's brother had been accused of poisoning the trees, but that they had not heard that appellant had been so accused. There seems to have been some talk in the neighborhood with reference to poisoning of the trees. Appellant and his brother, it is also shown, had a contract or were engaged in getting out timber, and these poisoned or alleged poisoned trees were supposed to be some of the timber on the land on which they were cutting trees. However, the bill of exceptions as qualified by the judge makes this statement in that connection: "The State showed by the witness Rube Emerson that if the deceased said that he, the defendant, had poisoned the trees, that he, the defendant, would poison Monroe Wilkerson. And also that the defendant told him, Rube Emerson, after the deceased was dead, that he, the defendant, had killed one of the sons-of-bitches, and if he got out of it, he was going to kill the others (meaning the deceased's brothers)." The deceased was Monroe Wilkerson. These matters are mentioned in deference to the motion for rehearing in which it is contended the matters were stated too strongly against the defendant in regard to these issues. We are of opinion that there is not sufficient merit in these contentions to change the conclusion that the jury was justified under the facts in reaching their verdict. We are also of opinion that the difference between the opinion and the statement of facts as contended by appellant, conceding that appellant is correct as to the matter of poisoning the trees, is not of sufficient moment to change any material conclusion reached.
The motion for rehearing will, therefore, be overruled.
Overruled. *Page 607