
    HANNERS v. STATE.
    (No. 10015.)
    (Court of Criminal Appeals of Texas.
    May 12, 1926.
    Appellant’s Rehearing Withdrawn June 12, 1926.)
    1. Homicide <&wkey;>203(5)— Alleged dying,declaration of deceased held admissible, though doctor who attended him testified that he after-wards stated that he was going to get weli.
    In prosecution for murder, alleged dying declaration of deceased as to how difficulty arose, held admissible, though doctor who át-tended him testified that he stated four hours later that he was going to get well, since jury should decide which witness they would" believe and whether deceased made such statement. •
    2. Homicide <&wkey;>216 — Deceased’s statement that he did not want wife to know of his condition, as he did not want her to grieve, held admissible as part of predicate for dying declaration.
    In prosecution for murder, deceased’s statement, that he did not want wife to know of his condition as he did not want her to grieve held admissible as part of predicate for dying declaration, when made in . connection with other statements which tended to show knowledge of serious nature of wounds and that he realized approaching death.
    3. Criminal law <&wkey;>364(5) — Defendant’s statement, two minutes after difficulty and before he or deceased had left place, that he would as soon hit a brother as deceased, held part of res gestas and admissible to show intent.
    In prosecution for murder, defendant’s statement, two minutes after difficulty and before he or deceased had left place, that he hated it if he had hurt deceased, and would as soon hit a brother'as him, held not inadmissible as self-serving, but part of res gestae and admissible to show intent. ■
    <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      4. Criminal law <&wkey;449 (2) — Witness’ statement that he thought deceased was going to shoot defendant held properly ruled out.
    In prosecution for murder, witness’ statement that he thought, from acts and conduct of deceased immediately before defendant cut him, that he was going to draw pistol and shoot defendant, held properly ruled out.
    5. Criminal law <&wkey;jil4(2l).
    One accused of murder is entitled to have law applied to facts of case in court’s charge.
    6. Criminal law <&wkey;806(3) — Charges on manslaughter, aggravated assault, and assault and battery held to err in failing to instruct that defendant should be given benefit of reasonable doubt.
    In prosecution for murder, court in charging on manslaughter, aggravated assault, and assault and battery held to have erred in failing to instruct that defendant should bé given benefit of reasonable doubt as to whether he was guilty of such offenses.
    7. Criminal law <&wkey;>763, 764(21), 1172(2) — Supplemental charge that jury could not consider alleged dying statement of deceased unless he was conscious held error as being on weight of testimony and harmful, where doctor had testified that deceased later said he was going to get well.
    Supplemental charge that jury could not consider alleged dying statement of deceased unless he was conscious held error as assuming that statement was made, and harmful where doctor had testified that deceased later said he was going to get well.
    cg^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Hardeman County; Robert Cole, Judge.
    George Hanners was convicted of murder, and he appeals.
    Reversed and remanded.
    A. J. Hires, of Childress, and Chas. L. Black, of Austin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck; for the State.
   BAKER, J.

The appellant was convicted in the district court of Hardeman county for the offense of murder, and his punishment assessed at 25 years in the penitentiary.

The record discloses that the appellant, the deceased, Wesley Taylor, and about 15 other persons were engaged in a “crap” game on a 'Sunday afternoon about the 19th day of April, 1925, when a dispute arose between the deceased and the appellant over a bet, in which the deceased cursed and abused the appellant. Afterwards, they settled the dispute and resumed gambling, but another controversy arose over a subsequent bet, which culminated in the appellant cutting deceased with a knife, from the effects of which he died two. or three days thereafter. It was the contention of the state that the homicide was without cause or provocation, and that the deceased was cut by' the appellant without warning or his expectation. The appellant defended upon the ground of threats and self-defense, and all' of the defendant’s witnesses who were present at the time of the difficulty, and all of the state’s witnesses except one or two, testified alike to the effect that the deceased was under the influence of whisky, and that in both controversies he cursed and abused the appellant and threatened to shoot him. The vast majority of the witnesses also testified that the deceased ran his hand in his bosom, and threatened to shoot the appellant immediately before the fatal blow was struck. Practically all of the witnesses testified that the appellant repeatedly told the deceased that he did not want to have any trouble with him, and not to curse him for a son of a bitch; that his mother was dead; that their parents had been friends for many years; and that after the first dispute he (appellant) started home, when the deceased interfered and insisted that they make friends and resume their playing, promising that he would desist from making any further trouble.

We find 10 or 12 bills of exception in the record, but deem it necessary to discuss only those which we think raise the important questions to be determined on this appeal. Bills 2 and 3 complain of an alleged prejudiced juror, and to the refusal of the court, upon the hearing of the motion for new trial, to grant said motion by réason thereof. In view of the disposition we have made of this case, we deem it unnecessary to discuss these questions, as they will not arise upon another trial.

Bills 4, 5, and 6 complain of the action of the court in permitting the witness Joe Taylor to testify to the alleged dying declarations of the deceased as to how said difficulty arose, the witness further testifying that the deceased requested him not to let his wife know it, as he did not want.her to grieve. The objection raised by appellant to this testimony was that there was not a proper predicate laid, and that the doctor who waited upon the deceased testified that the deceased told him four hours later that he was going to get well; the appellant contending that under the facts of the case the testimony of deceased’s brother as to the dying declarations of deceased should not have been admitted. We are unable to agree with this contention, and think that the court was right in admitting the testimony, and that same should have been left to the jury, under appropriate instructions, to decide which of the witnesses they would believe, or whether deceased made such statements. Walker v. State, 85 Tex. Cr. R. 482, 214 S. W. 331.

We think the objection by the appellant to that portion of the testimony as to what the deceased said with reference to not wanting Iiis wife to know of his condition, on account of her grieving, is not' tenable. This was a part of the predicate and made in connection with deceased’s other statements showing his knowledge of the serious nature of his wounds, and that he realized approaching death.

Bill No. 7 complains of the refusal of the court to permit the witness Quick to testify that within two minutes after the difficulty, and before the defendant or the deceased had left the place of the difficulty, the appellant made the following statement to said witness:

“Go down there and see if I hurt him. I hate it if X hurt him. I had just as soon hit a brother as to hit him.”

The state contended that this was self-serving evidence, and appellant contends that it was res gestae and admissible to show intent on the part of the defendant. We think the appellant’s contention is well taken, and that the court was in error in refusing to admit said testimony. Bateson v. State, 46 Tex. Cr. R. 34, 80 S. W. 88, and authorities therein cited.

Bill No. 9 complains of the action of the court in refusing to permit the witness Rockholt to testify, in effect, that just immediately before the appellant cut the deceased, the latter had his hand in his bosom, and had threatened to shoot the appellant, and that “he thought from all the acts and conduct upon the part of the deceased, and what the deceased said, that the deceased was going to draw a pistol and shoot the defendant.” We are of the opinion that there is no error in the court’s ruling out that portion of the witness’ testimony as to what he thought the deceased was going to do. Dunne v. State, 98 Tex. Cr. R. 7, 263 S. W. 608; Harris v. State, 101 Tex. Cr. R. 33, 274 S. W. 568.

The court charged on murder, manslaughter,' aggravated assault, and assault and battery. The objections to the court’s charge are very numerous, and on that account we are unable to discuss same in detail, but will only make mention of such matters as we think will clarify the criticisms lodged against same.

The appellant, in various ways, complains of the court’s failure to apply the law to the facts of the case, and we suggest that upon another trial the court amplify his charge in this' particular.

It is also urged that the court, in charging on manslaughter, aggravated assault, and assault and battery in separate paragraphs, erred in failing to instruct the jury that if they had a reasonable doubt as to whether appellant was guilty of manslaughter, aggravated assault, or assault and battery, to give him the benefit of the doubt. We think the court erred in failing to amend his charge in these particulars, so as to comply with the objections raised thereto. Richardson v. State, 91 Tex. Cr. R. 318, 239 S. W. 218, 20 A. L. R. 1249.

Criticism is also lodged against the court’s supplemental charge, wherein he submits to the jury the alleged dying statement which the state contended was made by the deceased to his brother, Joe Taylor, in that said charge was upon the weight of the testimony. The court, among other things, in this instance charged the jury:

“You are instructed that before you can consider such statement, it must be satisfactorily proven that at the time of making such declarations deceased was conscious,” etc.

We think the contention of the appellant is correct, and that this charge assumes that the deceased made the statement testified to by his brother, and same was harmful, in view of .the fact that Dr. McDaniel testified that he had a conversation with the deceased four hours. later in which he stated that he was going to get well.

For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion by the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.  