
    PHILLIPS v. STATE.
    (No. 4827.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    Criminal Law <&wkey;1091(4) — Appeal—Bill op Exceptions — Qualification.
    Bill to admission of physician’s testimony as to what accused said very, soon after the murder, on ground that he was then under arrest, qualified by judge’s statement that he was not then under arrest, and contradicted by accused’s own testimony, showed no error.
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Alexander Phillips was convicted of murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDER.GAST, J.

Upon a trial for murder, appellant was convicted, and the lowest punishment assessed.

There were no objections to the court’s charge in any particular. Every issue raised by the testimony was properly submitted in the charge.

The only questions presented are by three bills to the admission of testimony. The first was to the testimony of Dr. Pully, who testified, among other things, to some statements by the appellant to him very soon after he cut and killed deceased. This testimony was objected to on the ground that appellant was under arrest at the time. The bill quotes the whole of the testimony of Dr. Pully, not only of what the appellant told him, but of other material testimony on other points as well. Appellant’s objection that he was under arrest at the time is a mere objection. It was not approved as a fact by the judge. In fact, the judge qualified his bill by stating that the defendant was not under arrest, as disclosed by the testimony of the witness, and that appellant himself swore that Chapman and Cartledge arrested laim. They were deputy sheriff and constable, respectively, and this was some time after he had made the statements to Dr. Phlly. This bill shows no reversible error.

Another bill was to the testimony of Nannie White. I-Ier testimony is also quoted in full in the bill. She testified to some statements made by the deceased to her which the court admitted, it seems, either as dying declarations or a res gestae statement, or both.

His other bill is to the testimony of Maggie Mays and is gotten up in the same way. Her testimony was admitted by the court both as a res gestae statement and a dying declaration as shown by his qualification of tne bill. In addition to what the bill shows, the court told the jury in his charge that before they could consider the testimony of either of these witnesses they must find that the requisites for the admission of dying declarations were shown. The testimony of Nannie White was perhaps also a res gestee statement of the deceased. At least the bill by no means excludes any such idea.

The record was sufficient to show that the testimony of both of these witnesses was admissible as testifying to the dying declaration of deceased. Neither of these bills show reversible error.

There is nothing else for review.

The judgment is affirmed.  