119 Tenn. 178 | Tenn. | 1907
delivered the opinion of the Court.
The plaintiff in error was indicted in the circuit court of Obion county for the murder of his father, Rev. B. L. Holder, and was convicted and sentenced to be hanged. Against this judgment he has sued out a writ of error in this court, and has prayed that the sentence be reviewed.
The errors assigned are upon certain rulingsi of the circuit court in the admission of testimony and upon the sufficiency of the evidence to sustain the verdict. Passing for the present the first class of questions, we shall proceed at once to the case made by the evidence.
About ten o’clock on the night of December 27, 1906, Warren Brown, a colored man, returning to his home from the town of Troy, in Obion county, saw, on the public road leading from Troy eastward to Rives in the same county, a horse and buggy, down in a depression on the south side of the road at the west end of a bridge, about one mile east of Troy; the buggy overturned and the horse entangled in the harness. He at once proceeded to the homes of two men nearby, Luther Lancaster and A. A. Everton, and reported his discovery. Mr. Everton and Charles Lancaster, the son of Luther Lancaster, accompanied Brown back to the bridge, and a more particular investigation was then made; but nothing further was ascertained, except that a laprobe was found under the overturned buggy,.and that the horse was probably that of Rev.. B. L. Holder. The horse was extricated from the harness, and was
It appeared that on that afternoon, shortly before six o’clock, Rev. B. L. Holder had left his home to go to Troy, something more than a mile distant, to attend a Masonic meeting. He did not reach Troy, and did not return home. His horse and buggy were found in the predicament above mentioned at ten o’clock that, night, and the family and the neighbors began their search for him. The night was cloudy, and it was raining a little; but the darkness was somewhat relieved by the moon, which now and then shone through the clouds) The searchers had lanterns, and they explored the sides of the road between the fences, on each side, and to some extent the fields to the north and south, but not thoroughly, and nothing was discovered. About daylight, however, one of the party saw, about sixty yards away, within the south field, an object which, at that distance and in that light, presented to some the appearance of a low stump; but, as it was known there
On an inspection of tbe body, made soon after, it was discovered that there was a gunshot wound in tbe right side of the abdomen, close to tbe waistband of tbe trousers, from which tbe bowels were protruding. There was another gunshot wound just under the heart; in each of these wounds tbe orifice being about tbe size of a silver dollar*. One of tbe cheek bones was crushed in. Tbe back half, or portion, of tbe bead was crushed, so that it felt like a soft-shelled egg. There was a gash on tbe left side of the bead through wbicb tbe brains were visible. There were in all three gashes on tbe outside of tbe bead. There was á slight imprint or indentation in tbe ground where it appeared, or seemed, bis head bad lain, and above tbe top of bis bead there was a hole in tbe ground that presented tbe appearance of tbe bole made where a stick has been stuck in tbe ground; and there were hair and blood all-around the place. There was a considerable quantity of clotted blood on tbe ground, and for four or five feet around tbe ground was tramped, as if there bad been a struggle.
Further examination disclosed that tbe deceased bad on only one overshoe. Tbe other overshoe was found
At the east end of the bridge there was found lying in the road an empty shell, and at the west end of the bridge another empty shell. Each of these was a No. 12 of the kind known as “New Chief,” manufactured by the Western Cartridge Company for shotguns. These shells were of the size to fit a single-barreled shotgun which was owned by the deceased, and when that gun
The deceased was killed on Thursday night, December 27th. The body was discovered the next morning,. Friday, the 28th, and on that day the inquest was held. After the inquest was over, the body was removed tO' the family home and prepared by the neighbors for interment. One of those assisting in the performance-of this funeral rite was the witness W. A. Muse. After-the body had been prepared, Mr. Muse suggested that a search be made for the gun. It should be here interposed that Mr.. Holder, the deceased, had on the 15tli of December purchased a single-barreled, breech-loading shotgun- from Mr. Rochelle, a hardware merchant of Troy. He was accustomed to keep this gun in his-bedroom, lying between the mattress and the cover of a bed in that room. The Avhole family knew where he kept it. On the afternoon of the day immediately preceding the night he was killed — that is, in the late afternoon of Thursday, December 27, 1906 — Mr. Holder went out upon his farm to look for some calves and took his shotgun with him, to hunt along the way. About, supper time he returned, bringing the gun with him. His wife saw him take it into the house. She did not observe where he deposited it. It does not appear that any member of the family ever saw this gun after that time until its discovery by the witness Muse, after Mr.. Holder’s death, unless it was seen and used by the plaintiff in error, Lee Holder. Mrs. Holder says she never
Resuming the history of the search for the gun: After Mr. Holder’s body had been prepared for burial, Mr. Muse, joined by some other persons, went forth to find the gun. They were searching the barn. When they were within three feet of the place where the gun was subsequently found, the plaintiff in error came near and looked at them with an expression on his face evincing so much anger that Mr. Muse was frightened, and for fear plaintiff in error would do him harm he immediately ceased the search and went to the house. The next day, Saturday, after plaintiff in error had been placed under arrest, the search was renewed, and about twelve o’clock the gun was found. There was a hole in the east end of the barn, right at the ground. The barn was weather-boarded down to the ground; but there was a hole at the end that ran under the building, concealed from the outside in front by the planks. Into this hole the gun had been thrust, and
When the gun was drawn from its place of concealment, it was found to be in the following condition: The stock was broken off, the barrel was bent in two different directions. It was rusty, and it had mud, or' mud and hair, upon it, and there was blood on the end of it. It was a single-barreled, breech-loading shotgun of the make of Norvell Shapleigh Hardware Company. It was thoroughly identified as the gun of Rev. B. L. Holder by the witness Ed Turnage, who was present when Mr. Rochelle sold it to Mr. Holder. Mr. Rochelle testified to the sale of a gun of the make above mentioned to Mr. Holder on the 15th of December, and Mr. Turnage, who was present when the sale was made, identified the particular gun by a knot on the left side of the stock.
On the day immediately preceding the night on which the homicide was committed — that is, on December 27, 1906 — the plaintiff in error purchased of Ed Turnage, clerk of M'r. Rochelle, a hardware merchant of Troy, a bps'containing 25 New Chief shotgun cartridges of size No. .12, the proper size to fit his father’s gun, as already stated, and the same kind found near the bridge. Mr. Turnage does not remember the time of the day when this purchase was made, whether
The plaintiff in error admits that he knew on Friday, the next day after the homicide, that he was suspected
These shoes were peculiar, in that the left one was run down on the inside. After the body of the deceased was found, and while the people were still in the field where it lay, the attention of several of the party was drawn to the similarity of the tracks then made by the plaintiff in error to those made by the •assailant of the deceased, and two or more of the party marked the plaintiff in error’s tracks, those he made that morning, by sticking little sticks in them for future examination and comparison. The tracks of the assailant, as we have already said, paralleled those of the deceased until they come together at the point where the deceased fell. From this point the tracks
The demeanor, conduct, and conversation of the plaintiff in error during the search for his father’s body, then in the presence of the body after it was found, subsequently at the inquest, later at the time of his arrest, and lastly when he was under arrest, were all unnatural and eminently challenge attention.
F. 0. Watkins testified that on the night of the homicide, when the people were searching for the body, plaintiff in error “didn’t seem to have much to say, didn’t seem that anything bothered him.” He exhibited no anxiety. “He was laughing and talking with'the boys.” He smoked a cigarette that night. Carried a Winchester rifle all night. (This gun was borrowed from á
*192 “Q. Tel] tbe jury when he came up there what was his appearance, conduct, demeanor, and actions. A. I never saw him do anything. He seemed to be uneasy. I believe he did smoke a cigarette. Q. Do you mean by a cigarette one of those bought cigarettes? A. No, :sir; one that he made. Q. Did he make it there? A. Yes, sir.”
Plaintiff in error accompanied his mother to the house •of a neighbor, after she had seen the body, and he then returned. Of his demeanor and appearance at this time the witness Watkins says: “Q. Was he close to the "body of his father? A. He came right up just behind the men that were standing there. Q. Was he in sight ■of the body? A. Yes, sir. Q. Tell the jury what his actions and demeanor were there. A. He walked up by the men. He could see his father lying there in the field. His eyes glanced around. Q. You say he looked at his father? A. Yes, sir; he looked at his father with as — well, I don’t know how to express it, but he looked as though he was fierce and mad. He looked at him like he might have been looking at something he was mad at. Q. What was the expression on his face? A. That of being mad.”
Another witness, Mr. McDade, says he saw plaintiff in error that morning out at the scene of the murder where the body was-lying, and that he “was looking on as a casual observer.” Andrew Harrison, who came up after they had moved the body near to the road for the inquest, says he there saw the plaintiff in error standing
The murder was committed just at 6 o’clock on the evening of December 27, 1906. ■ Mr. Lancaster, who lived nearest the scene of the tragedy, was sitting in his hack yard stirring a kettle of lard which he was rendering. Mrs. Lancaster was at the supper table. She says: “We heard one, then in a little while two more shots, and the whistle blew” — the 6 o’clock whistle of a mill at Troy. Just after the first shot they heard some one shout: “Help! help! murder! murder!” Mr. Lancaster says: “Then I could hear a noise like this: ‘Oh! oh! oh! o-o-o-o-oh!’ ” There was a greater interval between the second and third shots.than between the first and second. The witness Sam Moffitt, who lived close to the roadside, says that before 6 o’clock he heard a buggy pass going towards Troy; next he heard going by in the same direction a horse in a lope, going, as he says, “tolerable fast”; then he heard a second buggy going in the same direction the horse had gone, westward towards Troy. He heard no other passing in that direction. After the man on horseback had passed, and after the second buggy had passed, he heard three shots in the direction of the bridge where the overturned buggy and entangled horse of the deceased were subsequent
With these facts before us, and one or two others noAV to be stated, the story of the crime can be put together without error in any substantial detail.
There Avas to be a public installation of the officers of the Masonic lodge in Troy that night, and plaintiff in error knew that his father Avas going. The matter had been discussed in the family. Mr. Holder invited his wife to go Avith him, but she would not go and leave her little daughter Nona at home with the boys (so she
The foregoing conclusions are only inferences from the facts contained in the record, and stated aboye; but they seem to us, in their substantial purport, necessary and inevitable inferences. The cartridges which the plaintiff in error purchased fit the gun of the deceased with scarcely more accuracy than did his shoes fit the tracks of the undoubted assailant of the deceased. Who but the plaintiff in error could have procured the gun of the deceased from his home and hid it under the barn after it had been used? Not his mother; not the young boy, Earl; not the two small children, Nona and (Cecil. There was no one else to do it. There is no intimation in the record that any stranger had any opportunity to get hold of the gun. Why did the plaintiff in error grow angry when he saw the searchers for the gun close to the place where it was hid, and frighten them away with the terror-striking aspect of his visage, if he did
In view of all these facts, can there be any doubt of the plaintiff in error’s guilt? We think there cannot be, and we are of the opinion that the jury were justified in finding that, although the evidence against the plaintiff in error was wholly circumstantial, no hypothesis could be entertained under it other than his guilt.
It is insisted that no motive is shown. If the- proof of guilt be clear, it is not necessary that there should be proven a motive, in the ordinary meaning of that term.
We can well believe that under such circumstances there was not much tender love between the parent and child — on the one hand a severe, exacting father; on the other, a restless, insubordinate, and rebellious son, always inwardly chafing against the restraints imposed on him. It was perfectly natural, too, that the wild disposition which led him to abandon his father’s home at the early age of fourteen and of sixteen, and the consequent reliance during these absences upon his own will and wishes, and the opportunity of giving rein to his «own unchecked impulses and passions, would add to his impatience of authority and intensify the spirit of lawlessness within him. We can easily conceive how such a boy would resent, when seventeen years old, a castigation with a pair of bridle reins, and that the memory of it would rankle in his heart. We have seen that his father had trouble with him on the subject of going to school, so much so that he had presented to the son, a year or "two before, the alternative of going to school or of •being driven from home. We have seen that on the very day before his death, the father had made arrangements to send this boy off to school. We know, from this boy’s conduct when the people were hunting for the
So far we have considered the case without bringing forward the defense interposed in the evidence. That defense, in addition to plaintiff in error’s personal denial of guilt, is an alibi. His mother, his brother Earl, and he himself all swear that at the time the murder was committed the plaintiff in error was sitting in his mother’s room at their home. There are some variations in their testimony, but this is the substance of what each of them says. On this subject the plaintiff in error says that when his father left, starting to Troy, he “was in the hall, or out on the back porch at the water bucket.” He says that after his father left “I came back in the house and sat down about five minutes, got up and walked in the yard about two minutes and a half or three minutes, then came back and sat down. I came back in the house, and my mother and brother Earl, and sister, and my small brother, Cecil, were in mother’s
Mrs. Holder says that when her husband left she was standing just inside the door of her room, and that Lee was in the room sitting by the side of the washstand; that as soon as her husband left she returned to the dining room, leaving Lee still sitting by the washstand;
The boy, Earl Holder, fifteen years old, when he testified, said that as his father started off he (the witness) walked back into the kitchen (also used as a dining-room) and picked up the popcorn popper and got some corn, and went right back into his mother’s room, and while he was getting the corn Lee stepped out; that he had shelled about half an ear of popcorn when Lee came in, and was popping the corn. From other parts of his testimony it is clear the witness means that Lee was in his mother’s room when witness started to the kitchen to. get the popcorn and the popper, and that as witness left the room to go to the kitchen, or while he was in the kitchen, Lee also left his mother’s room and went out into the hall, but came back as soon as the witness had shelled half an ear of popcorn, and while he was popping it; that he had just begun to pop the corn when Lee returned; that Lee did not leave the' room again that night until he went to bed; that they were all talking together and eating popcorn during the evening until bedtime — does not remember what his mother was doing, does not remember whether she was reading; that while they were eating the first popper of corn he heard
When these three accounts of the matter are compared with some attention to their details, they are seen to differ materially. According to Lee’s (plaintiff in error’s) testimony, he was standing in the hall, or on the back porch at the water bucket, when his father started to Troy. According to his mother and Earl, he was in his mother’s room. According to plaintiff in error’s testimony, after his father left he went into his mother’s room and sat there five or ten minutes, then went out and remained 2-J minutes; that when he entered the room the children were popping corn, and when he returned, the corn they had put on the stove was burning, and he called their attention to it. According to Earl, the plaintiff in error entered the room when they had just put on the first popper of corn, and did not go out any more, but remained in the room until bedtime. According to the plaintiff in error, when he first entered the room his mother was there with the children. According to her testimony he entered the room just after she did. According to plaintiff in error and his mother, he left the room after the first popper of corn had been put on, and returned before it was taken off, in time to inform Earl that the corn was burning. According to Earl the plaintiff in error came in after the first popper of corn
In view of these contradictions and incongruities between the several accounts of the alibi, it is impossible to place reliance in the testimony of either of the witnesses. Moreover, we do not believe that any one would mistake the sound of a shotgun, threefourths of a mile away, for the popping of firecrackers. In addition to all of this, the plaintiff in error told the witness Muse that he was absent from the house ten or fifteen minutes. The story of the alibi is inherently inconsistent and incredible. But, aside from this, it cannot stand against overwhelming testimony of plaintiff in error’s guilt furnished by the other evidence in the case which we have already set out and considered.
We shall now consider the assignments made upon questions of evidence.
It is insisted that error was committed in the admission of the testimony of Sam Moffitt concerning his
The next point relates to an item of evidence not previously referred to in this opinion.
In October, 1906, all of the family of Eev. B. L. Holder, except plaintiff in error, fell suddenly ill, including one G. L. Williams, a hired farmhand. The illness supervened immediately after eating supper, and was manifested by violent vomiting, which lasted, with some in
G. L. Williams testifies that during the day, on the night of which the illness of the family occurred, plaintiff in error and he were gathering corn; that plaintiff in error was laughing and talking while the work was going on; that during the afternoon they went to the well at the house to get water; that plaintiff in error went into the house and remained ten or fifteen minutes, all of the family being absent from the house; that plaintiff in error said he was going into the house to change his socks; that after they quit gathering corn that day plaintiff in error said he was sick and was not going to eat any supper; that he had not been complain
The objection stated in the assignment of error is that the testimony was incompetent, because it tends to show the commission of a distinct, independent crime; also that there is nothing to show that plaintiff in error put any substance in the food partaken of by the family, hence that the testimony recited bore no relevancy to the issue.
These objections were substantially made on the trial to the testimony of Dr. Hevener, but not to the testimony of the other witnesses.
As to the first point: So far as concerns the general question, we are of the opinion that previous attempts on the life of a person by the accused may be shown for the purpose of exhibiting the animus or state of mind of the accused towards the deceased, as indicating hostility, or a settled purpose to harm or injure that person. Williams v. State, 8 Humph., 585, 593, et seq.
In Hughes on Criminal Law and Procedure it is said: ■“Evidence of previous unsuccessful attempts to commit the same crime for which the accused is on trial is admissible.” Id., sec. 3134. To the same effect, see section 3137. In section 3138 it is said: “It is not a valid objection to evidence, otherwise competent, that it lends to prove the prisoner guilty of a distinct and different* offense. Evidence of other offenses 'is admissible to prove intent, motive, knowledge, malice, and the like.” In section 3140 it is said:’ “On a charge of attempting to poison a person by putting poison in his cup, it is proper to show in the evidence that a few days before, on a different occasion, a similar substance was found in his cup and saucer, and that drinking from the cup made him sick. Other facts than those alleged in the indictment may be shown in the evidence for the purpose of showing a system or plan of the party concerned in the transaction alleged in the indictment.” In section 149 it is said: “Where the prisoner was charged with the murder of her child by poison, and
As to the second point, the relevancy of the evidence, we think this equally clear. The weight of the evidence was for the jury; but we think there can be no doubt that the facts recited, either when taken all together or when we consider alone those brought out by the witnesses for the State, have a tendency to show that the plaintiff in error attempted to poison the whole family there at home (Dolphus was absent), including his father. Whether the inference afforded be very slight,
The next question arises upon the following occurrences shown in the bill of exceptions: As before stated, Mrs. Holder, the mother of plaintiff in error, was introduced in his behalf, and gave evidence tending to support An alibi for him; that is, to the effect that plaintiff in error was in her family room at home, in her presence, before 6 o’clock, at 6 o’clock, and thereafter until 8' o’clock, on the night of December 27, 1906, and hence could not have killed his father in a field near the road, three-fourths of a mile away, at 6 o’clock.
On cross-examination, Mrs. Holder was asked the following question: “At your house, on Saturday afternoon, after your husband had been'killed, in the presence of those parties you have stated were there, state whether or not you said this: ‘Is it possible that I have raised a boy that would kill his father?’ And your daughter Nona said, in substance: ‘Maybe Lee didn’t kill him.’ And you replied: ‘Yes; I will have to admit that he did it.’ ” She answered: “I didn’t say anything like it.”
When the question was put, the attorney for the plaintiff in error objected on the ground that it was incompetent, because it called for the mere opinion of the witness; that is, because the witness was asked to state whether she had expressed the opinion referred to. The objection, however, was overruled, and the wit
Afterward Mrs. Hevener, one of the persons referred to in the question as being present, was placed upon the stand in rebuttal. After identifying time and place, Mrs. Hevener was asked questions and answered as follows:
“Q. I would ask you to state, Mrs. Hevener, while you were there, you heard, this statement made by Mrs. Holder, or this in substance” — repeating question propounded to Mrs. Holder; and this was followed by a repetition of the objection above quoted. The witness answered that Mrs. Holder did make the statement referred to, in substance.
Subsequently in the course of her examination the circumstances under which the statement was made were thus detailed by Mrs. Hevener,' and the actual words used according to the witness’ recollection:
“I walked up to her bedside. I did not speak, for I feared to speak to her, for I did not know how she was. She opened her eyes and saw me” — witness was a sister of the deceased — “and began screaming, and said, ‘Oh, how can we stand it?’ And I said: ‘It is awful bad; but we have to stand it.’ I turned. I couldn’t stay there, and I started to walk out, and stopped at the foot of her bed, and she said: ‘Is it possible that I have raised a child that would kill his poor papa?’ And Nona began to console her, and said: ‘Mama, don’t you worry and kill yourself, for what*219 "would we do without you, and maybe Lee didn’t do it.’ She said: ‘Yes, he did, Nona; yes, he did.’ ”
It is insisted by the State that the evidence was competent for the purpose of impeaching the witness Mrs. Holder; secondly, that, if incompetent, no injury was done the plaintiff in error, inasmuch as this evidence was withdrawn from the jury.
The charge is not a part of the bill of exceptions, hence cannot be looked to; but the attorney-general refers to the fourteenth paragraph of the motion for a new trial as containing an admission that the evidence was withdrawn. That paragraph reads as follows: “The court permitted the attorney-general to ask Mrs. J. B. Hevener certain questions tending to impeach Mrs. B. L. Holder, which questions were objected to by defendant, and said questions were not withdrawn from the jury until the charge of the court; and it is attempted to withdraw said illegal and irrelevant testimony. It is submitted that said illegal and incompetent testimony was calculated to prejudice and may .have prejudiced the interests of the defendant, and ■should never have been permitted to go before the jury, •and the court was in error in so doing.”
As to the question of competency: The rules applicable to the subject are thus laid down in Wigmore on .Evidence (volume 2) : “What amounts to a self-con.tradiction. In the present mode of impeachment there ¡must, of course, be a real inconsistency between the itwo assertions of the witness. The purpose is to in-
The author continues in the next section: “Opinion as Inconsistent. A common difficulty is to determine whether some broad assertion, offered in contradiction, really assumes or implies anything specifically inconsistent with the primary assertion. The usual case of this kind is that of a general statement upon the merits of the controversy, which is now offered against a witness who has testified to a specific matter. Thus, A testifies for the prosecution that he saw the defendant near the scene of the alleged arson; it is offered to show that he has elsewhere declared that he is sure the defendant is innocent; is this admissible? The usual answer of some courts is that the declaration
Necessarily there will be much room for difference of opinion in applying the rule to concrete cases as they arise. We think, however, it is clearly applicable to the case before us. Mrs. Holder went to the place where her husband was murdered, and saw him as he lay there dead, about three-fourths of a mile from home, in a field' on the roadside. If her son was in her presence all the time, with the exception of four or five minutes, after his father left, until he went to bed at 8 o’clock, she knew that he could not have committed the murder. Her statement, therefore, to Mrs. Hevener, or in Mrs. Hevener’s presence, that she must admit her son was guilty, or that she believed him guilty, while in form the statement of an opinion, necessarily implied a contradiction in fact of her subsequent statement on the witness stand that her son was
We are referred to our own case of Saunders v. City & Suburban Railroad Co., 99 Tenn., 130, 41 S. W., 1031, as being in conflict with the rule laid down by Wigmore. In that case it appeared that- Dr. Saunders had been injured while crossing a street railroad track in his buggy, for which injury he sued the company. His daughter was with him at the time the accident occurred. On the trial she gaye testimony which tended to show that the servants of the street railway company were negligent, and that by this means the injury was, inflicted upon her father. For the purpose of contradicting- her, she was asked on cross-examination if she did not state at the time, in the presence of certain persons,, that the accident was due to her father’s fault. She denied that she made any such statement. The railroad company introduced witnesses in rebuttal who testified that she did make that statement in their presence at the time and place fixed in the impeaching question. When the case reached this court on appeal, it was held error to permit the asking of the impeaching questions and the introduction of the subsequent impeaching evidence. It is true that the reason given in the opinion of the court was that the statement made by Miss Saunders was the mere expression of an opinion on her
Some illustrations from the cases in other jurisdictions may he found useful.
In State v. Kingsbury, 58 Me., 238, the prisoner was convicted of inciting, hiring, etc., one James Kitchen to burn a house. The prisoner’s wife (a competent witness in that State) testified that she was present during the conversation between defendant and Kitchen, and that nothing was said or done by the defendant to induce Kitchen to bum the house, and that defendant did not furnish Kitchen a certain kerosene lamp filler with which it was sought to prove the house was fired. The State offered proof, which was admitted, that witness had said to Sawyer, about a half hour after her husband’s arrest, on being told by Sawyer that Kitchen had confessed that defendant had hired him to burn the house, viz.: “Well, he would never have done it if it had not been for others. . . . Others are more to blame than he was.” This was held competent. The court said: “Whenever a witness has testified to any material facts1, any acts or declarations of his which appear to be inconsistent with such testimony áre competent by way of contradiction. It is not necessary that thé contradiction should be in terms. Statements by the witness, inconsistent with his testimony on material matters, may. be proved
The whole court being of the opinion that the testimony objected to was competent, we need not go into the question whether the recital in the motion for new trial upon the subject of the withdrawal of the evidence, nothing else" appearing in the record upon the subject, is sufficient evidence of the fact that there was a withdrawal in proper form, a subject upon which there is
Errors are assigned npon the charge of the conrt; but, as that instrument tvas not made a part of the bill of exceptions, they cannot be considered. There was also an error assigned npon the refusal of the court to entertain an affidavit for a continuance, but this affidavit failed, also, of incorporation into the bill of exceptions, and the point cannot be considered.
After full consideration, as above, of the points presented for reversal, we are of opinion there was no error in the judgment of the court below, and it must be affirmed.