We have considred the motion for rehearing and arguments in connection therewith, and re-examined the record relative to those points again urged as errors calling for a reversal. We find ourselves confirmed in the view that our former opinion made a proper disposition of the case, and only desire to mention particularly one matter. In his insistence that the trial court committed error in permitting Low to testify that he called to appellant "Don't shoot that woman," chief reliance seems to be on the illustration used in the opinion in Felder v. State, 23 Texas Crim. App., 477, 5 S.W. 145. An examination of that case will reveal that the illustration used was foreign to the real question before the court for decision. Felder was charged with a wanton killing. A witness testified that after the shooting some one pointed toward accused and said, "There is the man who did the shooting." Another man was with accused at the time. The statement of the bystander was held inadmissible on the ground that although accused may have heard it the accusation did not individualize him, hence called for no response from him. We think the illustration used in Felder's is equally inapplicable to the present case. Low was about one hundred feet from appellant and deceased; he heard deceased scream and called to appellant not to *Page 35 shoot. The remark was an exclamation directed to appellant. Sustaining the admissibility of it we refer to Underhill's Cr. Ev., 3d Ed., Sec. 168; Wharton's Crim. Ev. (10th Ed.), Vol. 1, Sec. 262, p. 497, where many authorities are collated sustaining the admissibility of acts and statements of third persons as res gestae of the crime, among them being State 1. Kaiser (Mo. Sup. Ct.), 28 S.W. 182.
The motion for rehearing is overruled.
Overruled.