Appeal from Hempstead Circuit Court; Joel D. Conway, Judge;

statement by the court.

Appellant was indicted for the crime of murder in the first degree, was tried upon this indictment, and convicted of murder in the second degree, and his punishment fixed at twenty-one years in the penitentiary.

Appellant killed one Carl Michael. Fie admitted the killing; and, according to appellant’s statement, he had been out hunting squirrels, and was retunring home, when Michael overtook him. Appellant was afoot, and Michael was on horseback. Michael rode up behind appellant, and told him to hold up. Appellant turned, and saw Michael who passed under a certain haw bush, and came “right up to” appellant, and said to him, “Jett” (using profane language), “you’re going to pay me for that lumber.” Appellant denied owing him for any lumber. Michael called him a “damned liar,” and appellant turned to walk away. Michael told him to hold on. Appellant started to walk away again. Michael said, We are going to settle it now.” Appellant turned toward him, and Michael “had his hand in his bosom.” Appellant, quoting his testimony, “asked Michael not to do that, but he did not heed me; he put his hand in his bosom, and when he did that, I shot him and ran.” Further along in his testimony he says: “About the time that defendant hallooed, I put a shell of large shot into my gun, as I apprehended -having trouble.” Fie also shows that he and Michael were not on good terms; says that Michael and his father had accused him of stealing lumber from them; that this charge was false, and that they had some words about this on the day before the killing at Michael’s mill, when he and young Michael came near having a fight. He also told of another occasion, when he and young Michael had some unpleasant words, and Michael had told him on that occasion the following: “You can fix yourself; I will see you later about this.” He says that .he had been informed afterwards that Michael had said that if appellant did not want to have trouble with him (Michael), appellant had better stay off of the road. He had also heard that Michael had said he was going to whip .appellant the first opportunity.

The theory of the State was that appellant had killed Michael by lying in wait on the roadside behind a log, and had fired upon him from ambush. There was testimony on behalf of the State that tended to support this theory.

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