ON MOTION FOR REHEARING.
LATTIMORE, Judge.Appellant first insists that we erred generally in affirming this case, because the conclusion of guilt is directly in conflict with the testimony of all the physicians and other witnesses testifying, — all of whom appellant says testified to his insanity. We have gone carefully over the record, and we regret that we can not agree with appellant’s contention. In substance he contends that he was a paranoiac, that his brain disorder was such that while he could attend to all his duties, and in all other matters and particulars act as a sane man would be expected to, — that he was mentally unsound in that he believed deceased was trying to impose his attentions upon the wife of appellant, and that because while in this unbalanced condition of his mind, he shot and killed deceased he should have been acquitted.
It appears in the testimony that a great many witnesses testified, some of whom were physicians, and upon the history of appellant’s case given them these gentlemen testified that in their opinion he was a paranoiac. Others who were non-experts and who knew appellant and associated with him testified that in their opinion there was something wrong with him, and that he acted and talked in such way as to convince them that he believed deceased was trying to impose his attentions upon the wife of appellant. Several of these witnesses expressed their belief that appellant was of unsound mind. A number of other witnesses who associated with appellant gaye testimony to the contrary. Conflicts in testimony are for settlement by the jury, and this observation seems to us particularly applicable in a case like the one before us. One witness observing appellant’s conduct and demeanor in regard to the matters referred to, *647would conclude that appellant was very jealous of his wife, and that he, appellant, believed and so demonstrated by his acts, that he had cause to watch deceased and to believe he was paying attention to appellant’s wife. The wife denied any improper advances on the part of deceased. A number of witnesses testified that they had associated with appellant in the ordinary walks of life and had observed nothing wrong with him, or that indicated he was insane.
It is in evidence that after shooting deceased with a rifle while the latter was pursuing his ordinary work, appellant commanded deceased to say he was hijacked and shot, and that appellant took the gun with which he shot deceased and left it at a place where, according to the State’s theory, it was hidden. It is also true that at the time of this trial appellant appeared to be well and normal, and that he testified at length, and as intelligently as any witness could, — making out a complete case of self-defense, a thing which would probably appeal to a jury as the action of a sane man. The dying declaration of the deceased, which was in evidence, — wholly contradicted the testimony of appellant as to what occurred at the time and place of the shooting. We would not feel ourselves justified in disturbing the verdict of the jury upon the ground that the evidence did not support same.
Appellant complains in his motion of our disposition of his bill of exception No. 1. In addition to what we said in our former opinion regarding the refusal of the court to grant a continuance applied for, we further observe that no subpoena was attached to said application from which the trial court could be informed as to the diligence used by appellant to secure the absent witness, nor was any affidavit of said witness attached to the motion for new trial. The averments of the application were very general and indefinite.
Appellant also complains again of our disposition of his bill of exceptions No. 6. We have reviewed the matter. We do not think the testimony of Mr. Martin, complained of in said bill, at all inadmissible. The fact that appellant denied that he was the person claimed by Martin to have been seen on the morning of the homicide near the scene, would not make Martin’s testimony incompetent.
We have again reviewed appellant’s complaint of the reception in evidence of the dying declaration made by deceased, part of which was reduced to writing and signed by deceased, and the remainder of which purports to be a statement made by deceased just before he died. It is not necessary that a dying *648declaration be reduced to writing. There is no. question from the record before us but that deceased knew he was about to die. Appellant’s complaint of the fact that the district attorney questioned deceased, in answer to which questions part or all of the dying declaration was made, is of no avail. In Sec. 1866 of Mr. Branch’s Ann. P. C. he cites many cases holding that it is not a sufficient objection to the admission of a dying declaration that same was made in answer to questions. The showing should go further and show that the questions were leading or suggestive. See White v. State, 30 Texas App., 655, and Grubb v. State, 43 Texas Crim. Rep., 75.
We again repeat that Sheriff Morrow having testified for the defendant that his general reputation was good, it was permissible for the State on cross-examination to ask him if he had not heard that appellant had threatened his wife.
The bills of exception complaining of the argument of the district attorney are each qualified by the court below, and examination of same lead us to believe, in the light of such qualification, that no error is presented in any of the bills of exception thus complaining.
We are appreciative of the argument appended by appellant to his motion, and confess that same is appealing, but the case seems to have been fairly tried, and we are unable to convince ourselves that the jury were not justified in their conclusion that appellant was not in such mental condition as that he did not know right from wrong in killing deceased; and also believe that none of the errors presented by bills of exception are such as call for a reversal.
The motion for rehearing will be overruled.
Overruled. *650for the offense of robbery, and his punishment was assessed at confinement in the State penitentiary for a term of five years.