Bill of exception No. 4 which relates to the testimony of the witness who reduced to writing the dying declaration of deceased, contains the following recital.
"And for the purpose of this bill, to show that the proper predicate was not laid by the witness who took said purported dying declaration the entire testimony of said witness as hereto attached as Exhibit 'A' ".
Then follows the entire testimony of this particular witness on both direct and cross-examination. From this appellant argues that we were in error in saying in our original opinion that the bill complaining of the introduction of the dying declaration omitted the statement that it "contained all the predicate laid." The predicate many times consists of the evidence of a number of witnesses, and seldom depends alone on that of the witness who reduces the statement to writing. The rule that a bill complaining of an insufficient predicate must set out all the evidence on the predicate and state that it does so do, has been the unbroken holding of this court. For some of the more recent cases see Elliott v. State,111 Tex. Crim. 534, 15 S.W.2d 648, citing many earlier ones. *Page 203 Moore v. State, 127 Tex.Crim. R., 78 S.W.2d 189; Banks v. State, 131 Tex.Crim. R., 97 S.W.2d 219. It may not be amiss to here state that an examination of the entire record leaves no doubt in our minds that the predicate was sufficient to admit the declarations in question.
It is claimed that we misapprehended bill of exception number five. That the bill in fact directed complaint at the action of the trial judge in directing questions to the witness who took the dying declarations of deceased, and bearing upon the predicate for the introduction of such dying declarations. Most of the questions were directed to the witness in the jury's absence and we fail to discover any error. It seems to be an effort on the court's part to inform himself so that his ruling might be properly made. The said bill recites that appellant "did not object or except" but believed that the court's conduct was "so prejudicial that it constitutes reversible error in that such interrogation was leading, suggestive and called for a conclusion upon the very part of the testimony needed by the State to show a proper predicate" for the introduction of the dying declarations. A further examination of said bill number five leads us to conclude that no error appears.
We observe that in regard to the argument complained of in bill of exception number six, referred to in our original opinion, the trial court directed the jury not to consider same. In view of the punishment inflicted we remain of opinion that we would be unwarranted in predicating a reversal upon the argument complained of in any or all of the bills relating to that subject, as qualified and explained by the court.
The motion for rehearing is overruled.