delivered the opinion of the court.

This is an appeal from a conviction of murder followed by the death penalty. The cause was submitted to this court on a former day and affirmed, no briefs being then on file by either the appellant or the state. The cause now comes on to be heard on the joint request of counsel for the appellant and the attorney general that the former judgment be set aside and the cause determined on its merits, counsel for the appellant fling with the motion his brief on the merits. The motion to set aside the former judgment will be sustained and since, after a re-examination’ of the cause in the light of the appellant’s brief on the merits, we find no error in the rulings of the court below complained of, the judgment of the court below will be again affirmed', and Friday the 26th day of March, 1929, fixed as the date for the execution of the sentence.

• Affirmed.