We discussed the admissibility of the offered statement of deceased set out in bill of exceptions No. 5, wherein it is made to appear that after the shooting, appellant said to deceased, "You know that it was an accident and I didn't intend to shoot you", to which deceased replied, "I know it and I forgive you and want you to forgive me." We did not discuss the matter with any view of definitely determining the admissibility of the statement of deceased as a dying declaration, or as res gestae; nor was our attention called to the form of the question or statement put to deceased by appellant as a predicate to what she replied, which might be invoked against its admissibility if her statement had been offered as a dying declaration or as res gestae. The pith of our opinion, and the gist of our discussion, intended to set forth that the State having introduced the dying declaration of deceased as indicating an intentional killing on the part of appellant, he had the right to prove other declarations of deceased showing that the shooting was accidental. In other words, a dying declaration may be attacked or impeached by showing other statements of the declarant of different import. Felder v. State, 23 Texas Crim. App. 488; Hamblin v. State,34 Tex. Crim. 385; Phillips v. State, 50 Tex. Crim. 129; Herd v. State, 43 Tex.Crim. Rep.. If one whose dying declarations are admitted in evidence has at other times made statements contradictory to such testimony, — under the authorities cited and others the contrary declarations are provable, and in such case similar supporting statements made by the deceased might be held admissible under all the rules.
The State also vigorously combats the correctness of our holding admissible as res gestae the statement made by appellant to his brother shortly after the shooting. The objection to said testimony made then, and appearing in the qualification of the learned trial judge, and urged in argument before us, seems of more cogence as affecting the truth of whether such statement was made, than as showing it not admissible. That appellant called a doctor before he called his brother and said nothing to the doctor about the manner or surroundings of the killing, would hardly seem to suffice as a reason for our holding the statement later made to his brother not res gestae. No explanation as to the why or wherefore of the shooting would seem necessary in calling a doctor, and while that fact might be usable in argument as against the probability of the subsequent narration to the brother being made, it could have no weight with us, who are only called on to determine whether or not the offered statement made to the brother was admissible under the ordinary rules governing res gestae. We have carefully examined the facts *Page 26 as indicated in our original opinion and are unable to say that the statement as offered was not res gestae. The rule has application both for the State and the accused, and appears to be impossible of exact definition, but must be invoked upon the fact of the particular case as it arises.
Not being able to agree with the State, we are of opinion the motion for rehearing should be overruled, and it is so ordered.
Overruled.