After stating that the deceased seemed rational when a question was propounded to him, his wife was permitted to state: "I asked him if he was called on was he ready to go, and he said he was." A prompt objection was addressed to this evidence, and was overruled by the court. When stating in the original opinion that the evidence was promptly withdrawn, we mistook the record. From *Page 376 one of the bills on the subject it appears that it was withdrawn at the request of State's counsel after the State had rested its case. We assumed from the qualification of the bill — to the effect that it was withdrawn after the doctor testified — that the conclusion was reached that the element of consciousness was not sustained in the predicate, the doctor having given testimony indicating that the brain was paralyzed by the wound, and that the deceased was not conscious. The evidence in question was irrelevant upon any incident of the homicide, or the cause of the death. The deceased was shot at close range, at least four buck shots penetrating his head, and we think the evidence was such as to exclude his consciousness at the time his wife reached him. We believe we were in error in holding the admission harmless. It could have been used for no legitimate purpose; it may have been given an effect prejudicial to the appellant's case.
The testimony relating to the incidents immediately connected with the homicide was conflicting. From the defensive testimony, the deceased a few days before he was killed had in his words and conduct been aggressive, abusive, and threatening towards his neighbor, the appellant, and that the fatal shot was fired while the deceased was engaged in a hostile demonstration, and making use of vile language towards the appellant. We conceive of no application the jury could have made of the evidence complained of other than to have drawn the inference therefrom favorable to the blameless life of the deceased, and the innocent character of his conduct at the time he was killed. It was in a class of evidence which has frequently been held inadmissible, and at times cause for reversal. In Rice's case, 51 Tex. Crim. 280, the court said: "`to meet him in heaven, not to hurt anybody, and that he forgave the man who shot him' was certainly not evidence to which deceased or any other witness could have testified, and was of a character calculated to prove exceedingly hurtful to the appellant."
In Wilson's case, 49 Tex.Crim. Rep., the declaration excluded was: "What will become of my poor wife and children?" In Drake's case, 65 Tex.Crim. Rep., 143 S.W. Rep., the deceased said: "Tell my mother I am going to die like a man, and that a coward shot me." In Hayes' case, 73 Tex.Crim. Rep., 164 S.W. Rep., the declaration to his wife that he had made ample provision for her, had done the best he could, was held of a harmful nature. So in Jackson's case, 63 Tex.Crim. Rep., Judge PRENDERGAST, writing the opinion, said: "Objection was made to the introduction, especially of the fact that she had kissed him when she first or soon after she reached him, then he requested her to kiss him good-bye, which she did. . . . This would have a tendency to prejudice the rights of the appellant, stir the emotions of the jury against him, and influence their minds."
The issues were sharply drawn and the evidence conflicting. To what degree, if at all, the improper testimony impressed the jury, is a *Page 377 matter of conjecture only. We are certain it should not have been given to them; it is obvious that they may have used it; it is clear that they could have used it for none but an improper purpose, one conflicting with the appellant's theory and prejudicial to his case. The effect of the attempted withdrawal is equally dubious, and delay in making the effort accentuates the difficulty. Welhousen v. State, 30 Texas Crim. App., 623, 18 S.W. Rep., 30; Kemper v. State, 63 Tex.Crim. Rep., 138 S.W. Rep., 1030; Clements v. State, 61 Tex.Crim. Rep., 138 S.W. Rep., 728; McCandless v. State, 42 Tex.Crim. Rep., 57 S.W. Rep., 672; Haney v. State, 57 Tex.Crim. Rep., 122 S.W. Rep., 35; Barth v. State, 39 Tex.Crim. Rep., 46 S.W. Rep., 231; Branch Ann. Texas, P.C., Sec. 383; Wharton Cr. Ev., Vol. 1, p., 530.
Unable to be assured that the error was harmless, conscious that it may have been hurtful, and sure that the admission of the evidence was illegal, we conceive it our duty to accord the appellant another trial. The motion for rehearing is therefore granted, the affirmance set aside, and the judgment now ordered reversed and the cause remanded.
Reversed and remanded.
[Motion for rehearing overruled January 26, 1921.]