The offense is murder; the punishment, fifty years.
The deceased, Charles Lolan Hunsaker, also known as Jack Hunsaker, was part owner and operator of the St. George Bar in Downtown Dallas.
On the night of May 29, 1957, a passing motorist heard a shot fired and saw the deceased staggering or running away from appellant, who was standing close by him when the first shot was fired.
The last two shots were fired as the deceased, who was unarmed, lay on his back in the street, appellant standing over him.
Appellant left the scene. He was arrested a few days later and obtained his release by habeas corpus, without having disclosed his identity as the killer.
*232Several days later he went to the officers, in company with his attorney, and said he had killed Jack Hunsaker and from information given by him the 38 caliber automatic pistol with which the deceased was killed was recovered.
Appellant’s version of the killing was that the deceased had made threats to kill him and that, when he approached, the deceased was standing with his hands in his pockets and said “I will kill you and every son-of-a-bitch I can find named Yates,” and that he “started out of his pockets with his hands and I came out with the gun and shot him.”
Self-defense and communicated threats were submitted to the jury, and rejected.
Two grounds of error are presented in appellant’s brief.
E. R. Solomon, testifying for the defense, stated that he heard the deceased say, while in the hospital recovering from a gunshot wound inflicted upon him by appellant on a prior occasion, “the next time I won’t miss.” (Appellant testified that the deceased had shot at him, on the occasion of the prior difficulty, before he wounded the deceased.)
Solomon testified that he communicated this threat to appellant, and further testified that it was common knowledge between himself, Yates (appellant) and Jack Hunsaker (the deceased) that the deceased Jack Hunsaker was gunning for appellant.
On cross-examination the following occurred which is complained of as the first ground for reversal.
“Q. And what did Jack (the deceased) tell you, that someone was gunning for him? A. Yes.
“Q. Jack told you that someone was gunning for him? A. He wanted to know * * * *.
Objection: “That’s hearsay of the rankest kind.” Motion to instruct the jury to disregard the question was overruled, and the cross-examination proceeded.
“Q. Did Jack tell you who was gunning for him? A. Well, he kneiu who it was and I knew who it was. He told me that people were * *
*233Objection was renewed as to “what he told him' on the telephone” and was overruled.
The witness was then asked “and was that person J. T. Yates?”
Appellant’s counsel addressing the court then said “Let’s get his full answer on that.” The court agreed and had the question read back and counsel for the state added “or was it some other person?”
The witness answered: “He thought it was J. T. Yates,” and the court sustained the objection “to what he thought,” but overruled the objection and declined to withdraw the testimony as “to what he said.”
The witness should not have been permitted to testify as to what the deceased had told him. We note, however, that the witness testified that he knew and the deceased knew who it was that was “gunning” for the deceased.
The testimony of Solomon, “He knew who it was and I kne^r who it was” that was “gunning” for the deceased, being before the jury, the overruling of the motion to strike the hearsay evidence would not warrant reversal.
The second ground for reversal relates to the testimony of Cliff Hunsaker, brother of the deceased, on rebuttal to the effect that Solomon, after expressing his sympathy over the death of his brother Jack, said: “I tried to call him and warn him that somebody was trying to kill him.”
Solomon had been asked on cross-examination and had denied making such statement to Cliff Hunsaker.
We need not pass upon the question of whether Cliff Hun-saker’s testimony as to the statement attributed to Solomon was inadmissible under the hearsay rule. The evidence of Solomon was before the jury that he knew and the deceased knew that appellant Yates was “gunning” for the deceased Jack Hup-saker, and that it was common knowledge ■ between them that Jack Hunsaker, the deceased, was “gunning” for appellant Yates.
Solomon testified that he communicated the threat made by the deceased to appellant. Whether Solomon tried unsuccess*234fully to warn the deceased what he already knew added nothing prejudicial to appellant.
The evidence is sufficient to sustain the jury’s verdict and we find no reversible error.
The judgment is affirmed.