Appellant insists that our disposition of his bills of exception numbers two and three was erroneous. Bill number two brought forward complaint of the introduction of a dying declaration which was objected to upon various grounds set out in the bill. Later counsel for appellant by written motion requested the court to withdraw said dying declaration from the jury, the request being based upon the same grounds urged against its introduction in the first instance. Complaint at the refusal of the court to withdraw the declaration is brought forward in bill number three. It is urged here that the predicate for admitting the dying declaration was insufficient. The court having admitted it the presumption prevails that his ruling was correct unless it is shown to the contrary in the complaining bill. In Branch's Ann. Tex. P. C., Sec. 1864, is found the following:
"A bill of exception taken to the supposed error in admitting proof of a dying declaration without laying the proper predicate to be sufficient must contain, and state it contains, all the predicate laid upon which the declaration was admitted, and must also set out the declaration." *Page 206
Authorities are cited supporting the text. Practically the same rule is stated in Tex. Jur., Vol. 4, Sec. 225, p. 329, with citation of supporting authorities. In Hill v. State,88 Tex. Crim. 179, 225 S.W. 521, Judge Davidson states the rule in these words:
"A bill of exception will be held insufficient when taken to supposed error in admitting evidence of a dying declaration without laying the proper predicate, and, to be sufficient, it must contain and state that it does contain all the predicate laid upon which the declaration was admitted, and must further also set out the declaration."
In Elliott v. State, 111 Tex.Crim. Rep.,15 S.W.2d 648, the Hill case was followed. Other later cases were noted in Elliott's case. We now call attention to the still later cases of Downing v. State, 113 Tex.Crim. Rep., 20 S.W.2d 202; Moore v. State, 78 S.W.2d 189. There is an entire absence from bills of exception numbers two and three of any statement that they contain all of the predicate laid for admitting the dying declaration. For this reason as well as those stated in our original opinion we think the bills fall short of presenting error.
The second ground urged in appellant's motion for rehearing is that the trial court committed error in charging on provoking the difficulty, and that we were in error in holding that the issue was in the case. Appellant's contention on this point has made it necessary to again review the testimony, which has been done. It is true appellant's evidence does not raise the issue, but we think the State's testimony well warranted the trial court in submitting that subject to the jury.
We have read with interest appellant's complaint of our original opinion disposing of the criticism of the trial court's instruction on the issue of self-defense, and in connection therewith have re-examined the charge on that subject given by the court. In view of appellant's testimony and that of his witnesses the charge criticized appears to have been a pertinent application of the law. After a most careful re-examination of the question we can not bring ourselves to agree with counsel for appellant that there was a failure in the instruction to apprise the jury that in passing upon the issue of self-defense the matter must be viewed from appellant's standpoint.
Believing the case was properly disposed of originally, appellant's motion for rehearing is overruled.
Overruled. *Page 207