Appellant was convicted in the District Court of Fannin County of manslaughter, and his punishment fixed at five years in the penitentiary.
The facts in the record seem to warrant the conclusion of guilt reached by the jury and will not be discussed by us. By three *Page 102 witnesses appellant sought to prove a dying declaration on the part of his wife, and the only bills of exception in the record are to the refusal of this testimony. Of the four things made necessary by Article 8088, C.C.P., in establishing a predicate for the introduction of dying declarations, but the first is involved, i.e. was it satisfactorily proved that at the time of making the statement deceased was conscious of approaching death and believed there was no hope of recovery? We have carefully weighed the utterances of the deceased at the time and of each person present, as well as what had been said and had taken place and regret that we are unable to agree with the contention of learned counsel for appellant.
The shooting took place about 8 o'clock at night and the statement was made some twelve hours later. Deceased was shot in the upper part of the leg. The doctor who attended her said at no time did he tell her she was in danger of death because of his fear of the effect of such statement upon her. No one else seems to have suggested the likelihood of dissolution. When the witnesses by whom the proof was offered, came to the house next morning, none of them suggested that she, deceased, was in a dangerous condition. They did not know such fact. One of them, Mr. Merrill, asked deceased to tell him how it happened and she told him and he then said that they (meaning officers) would arrest appellant for this, — and deceased said, "Well, I don't want him arrested, I was as much to blame as he was, and I want him here to take care of the children." She was perfectly rational at the time and told witness all the particulars of the shooting. We have been unable to find anything in the statements of deceased, or in the surrounding circumstances, or in what had been said to her, — from which we could conclude the learned trial court in error in the rejection of the testimony. The rule has been frequently discussed and applied and a restatement of the various conclusions reached by the court upon different states of fact as evidenced by the decisions, would seem unnecessary. Appellant seeks to have us apply a more liberal rule to a case in which the dying declaration is exculpatory than that which is applied when same is criminating, and cites Mr. Wharton's Criminal Evidence, Vol. 1, p. 887, 10th Ed., and State v. Ashworth, 50 La. 94, 23 So. 270. Mr. Wharton makes his statement apparently wholly upon the authority of the Louisiana case cited and merely states that it has been said that the rule should not be so vigorously applied when the facts satisfactorily show that they favor the accused as when they are urged against him. No other cases or authorities are cited by this elementary writer. We so seriously doubt the soundness of the announcement as to be unwilling to engraft it upon our system of procedure. One accused of crime in this State is now given the presumption of innocence, the benefit of reasonable doubt, the right of appeal and complaint *Page 103 of all rulings thought to be adverse; and in the absence of some stronger showing of authority or reason for adopting the rule suggested, we must respectfully decline to give it our approval.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON REHEARING. June 27, 1924.