The opinion
The State has filed a motion for rehearing, in which contention is made that the evidence of Dr. Bishop should be held to be admissible in view of the excluded evidence of two witnesses whose evidence should have been admitted, and when done would show that the deceased contemplated death at the time he was talking with Dr. Bishop. We could hardly give effect to testimony which was excluded and, even if it were submitted, we are confronted with the positive statement of Dr. Bishop who appears to have taken a different view. It will not be necessary to discuss the complication which such excluded testimony might bring about, if admitted. However, the authorities on the subject are clear. In case of conflict, the jury would be called upon to decide a question of fact, upon which finding they would also determine the admissibility of the evidence of Dr. Bishop.
The State's motion for rehearing is overruled. *Page 299