In his motion for rehearing appellant presents so-called assignments of error, and since errors in cases appealed to this court must be presented by bills of exceptions, we have had difficulty in following appellant's reasoning based on his said assignments of error. If what is called appellant's first assignment of error is intended as renewing complaint of our disposition of his bill of exceptions No. 1, the matter is without merit. No part of our original opinion is referred to or urged as erroneous. Appellant sets out at length the testimony given by his wife who swore strongly for the defense. If we understand the complaint under discussion, it is aimed at the cross-examination of said wife as a witness by the State's attorney. The whole effect and purpose of the cross-examination of said wife was to show that her testimony was fabricated. We note that practically all of the questions propounded to her on cross-examination were answered in the negative. We know of no rule of this or any other court which would deny to the State its right to try to lay a fair predicate for the impeachment of the wife by showing that she was a party to a fabricated defense, and that her testimony was of that kind. Said bill of exceptions with its qualifications covers nineteen pages of the transcript, in which appears the testimony both upon direct and cross-examination. The so-called assignment of error sets out generally that the trial court erred in permitting the State to cross-examine appellant's wife upon matters about which she did not testify in her direct examination, and which were not germane thereto, — no particular question or answer being complained of. Nothing in Art. 714, C. C. P., or any of the authorities cited, supports appellant's position. It is as though he was complaining of a cross-examination of his wife wherein she was only asked questions whose whole effect and purpose was to show that she was at another and different place at the time of the commission of the alleged offense, and at such place doing certain things with certain other named persons, — material only as showing her presence at the time and place asked about, — which necessarily would be *Page 248 a cross-examination upon matters about which she had not testified upon her direct testimony, but which would nevertheless be very germane thereto, because tending to show that her testimony was false. We are unable to uphold appellant's contention. We further observe that in any event when the witness categorically gives negative answers to all such cross-questions, she could not be said to be thus compelled to give evidence against her husband.
Appellant has another so-called assignment of error, asserting that the trial court erred in permitting the State to introduce in evidence "The parts of the dying declaration of deceased objected to by appellant." This is followed in appellant's motion by statements at length of the testimony, including the whole of the written dying declaration signed by deceased and read to the jury. We have again carefully examined said statement in the light of appellant's complaint, and the qualifications placed on this bill, — and find nothing in the bill which might not have been fully testified to by deceased if a witness, and find in the court's qualification an additional statement to those quoted by us in our former opinion, and to make clear our views we again quote what the trial judge said, as follows: "In defendant's seventh exception to the court's charge a request was made that all of the declaration save and except the following be withdrawn from the jury. The court granted this request and instructed the jury asfollows:" Then follows in the bill of exceptions the written dying declaration as copied in our former opinion. No exception appears to have been taken to this, and in our view of the matter this eliminated from the written dying declaration any matter which might otherwise have been deemed objectionable. We are not able to agree with appellant's complaint in this regard.
The motion for rehearing will be overruled.
Overruled.