Appellant was convicted of murder of the first degree, his punishment being assessed at death.
Several bills of exception saved to the ruling of the court present the principal matters complained of as error.
1. The defendant’s first and third bills of exception relate to the same-subject matter. The witness Brock, over objections of the defendant, was permitted to testify as to a letter written by the deceased to the defendant the summer before the killing, and which deceased asked the witness to convey to the defendant, and at the same time requested witness to “ tell, defendant Fulcher that if he did not bring his things back to him that he-would get them by law; that he had been to Estacado and found out what, the law was.” The witness Askings was also permitted to testify, over-objections of defendant, what was said by the witness Brock to defendant’s wife at the time Brock delivered to her the letter written by deceased to. *471her husband, demanding the return of his property, and threatening in case the property was not returned that he, deceased, would have both defendant and his wife arrested for theft. The objection urged to the admissibility of this testimony was that defendant was not present on either of the occasions. It is amply established by other evidence in the ease that defendant knew all about the letter deceased had written him concerning the return of his property—in fact, the letter was read in Fulcher’s presence; and Askings says in his testimony that the Avhole subject of the return of the property was discussed in conversations between himself, the defendant, and defendant’s wife. Under the circumstances, if the evidence had been illegal and inadmissible, its admission would have been harmless error, of which defendant could not complain.
2. Another exception was to the admission of the testimony of the witness Campbell to the effect that on the second night after the shooting defendant, after having been arrested, was brought back to the Matador ranche, and carried into the presence of the wounded man, and that “they spoke to each other, and Beemer identified Fulcher as the man who had shot him.” Objection urged to this testimony is that it only shows the opinion of the wdtness. We think the evidence was admissible. “When the opinion is the mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts upon which it is based.” Whart. Crim. Ev., 9 ed., sec. 458; Willson’s Crim. Stats., sec. 2502, p. 239; Powers v. The State, 23 Texas Ct. App., 43; Irvine v. The State, 26 Texas Ct. App., 37.
3. Bill of exception number five complains of the admission of the statements of the wounded man made to the witness Campbell about thirty minutes after he was shot, as to the circumstances of the shooting and who shot him. Deceased was shot in the neck, and his articulation was affected by the blood collecting in his throat. About fifteen minutes after he was shot Campbell administered to him some brandy and camphor to clear up his throat, and about fifteen minutes afterwards, when he was able to talk, deceased made the statements complained of. Under the circumstances shown we are of opinion the declarations were admissible as res gestœ. Willson’s Crim. Stats., sec. 1046; Stagner v. The State, 9 Texas Ct. App., 441; Warren v. The States Id., 619; Washington v. The State, 19 Texas Ct. App., 521; Pierson v. The State, 21 Texas Ct. App., 15; Smith v. The State, Id., 277; Irby v. The State, 25 Texas Ct. App., 203.
4. The witness Campbell was also permitted to testify as to the making of a dying declaration by deceased a few days after the shooting, which declaration was reduced to writing by witness, and sworn to by deceased before the witness as notary public; and in connection with this testimony said written declaration was also offered and read in evidence. In our opinion a proper predicate for the admission of the dying declara*472tions was laid, and the evidence was properly admitted. Willson’s Crim. Stats., sec. 1045; Miller v. The State, 27 Texas Ct. App., 63.
Deceased was shot on the night of the 14th of September; a few days thereafter the dying declarations were made and reduced to Avriting, but deceased lived until the 4th day of November following. At the time he made the declarations we think it is clear that he then felt conscious of approaching death, and believed there Avas no hope of his recovery. There is no testimony showing that subsequent to making the declarations, and before his death, his mind ever changed as to his condition or as to his “immediate apprehension of death.” Edmonson v. The State, 41 .Texas, 497.
5. Defendant’s second bill of exceptions shows that the State’s witness Wells, on his examination in chief, was permitted, over defendant’s objections, to testify that “the day after Beemer was killed, as I after-wards ascertained, I returned to my home about the middle of the afternoon. I found there Jeff Boon and Tom Stewart and (defendant) T. J. Fulcher. Stewart and Boon had arrested Fulcher and had him in custody when I arrived. I afterwards heard Stewart say to Fulcher, ‘We have arrested you for killing Beemer last night,’ whereupon Fulcher seemed agitated and turned pale.” This testimony was objected to because the defendant Avas under arrest at the time. The court in explaining this bill states that he limited the witness’s testimony to the fact as to Avhether or not any visible impression was made on defendant when he was charged with the murder. Had defendant not been under arrest there is no question but that his acts and conduct, as well as appearance when charged with the murder, would have been admissible as evidence against him. Noftsinger v. The State, 7 Texas Ct. App., 302. And even after arrest it was formerly held, in the cases of Cordova v. The State, 6 Texas Court of Appeals, 208, and Handline v. The State, Id., 348, that “the acts and conduct of a defendant in arrest, either before or after being accused Avith the crime, may, though not res gestae, be competent evidence against him as indicative of a guilty mind.” These decisions Avere based upon the rule announced in Roscoe’s Criminal Evidence, 17-19, and the same rule is held in Brownell v. The People, 38 Michigan, 732 (which is a case directly in point), and in Greenfield v. The People, 85 New York, 75. It is also the rule announced in a late case in Kansas (The State v. Baldwin), reported in full in 9 Criminal Law Magazine, page 49. But a different rule Avas announced by this court in Nolen’s case, 14 Texas Court of Appeals, 474, and it was there held that “where the confessions of a defendant under arrest are inadmissible against him because made while he was uncautioned, his acts, if tantamount to such a confession and done under similar circumstances, are likeAvise inadmissible.” This decision, which practically overruled the Cordova and Handline cases, since its announce*473ment has been followed and recognized as the rule in this State. Carter v. The State, 23 Texas Ct. App., 508.
Under the rule as it now obtains the evidence complained of was illegal and inadmissible. This error will necessitate a reversal of the case. McWilliams v. The State, 44 Texas, 116. In view of another trial we will notice one or more of the other errors complained of.
6. It is insisted that the court should have charged upon assault with intent to murder, and that the special requested instructions asked for •defendant should have been given. As to the requested instructions, we think they were properly refused. The evidence shows that the death was caused by the wound inflicted by defendant, and that there was no neglect or improper treatment of deceased. The charge of the court in relation to such an issue was not excepted to, and is more favorable to the accused than he would have been entitled to had there been such an issue in the case.
It is claimed that the court committed a fundamental error in instructing the jury in the fourth paragraph of the charge as follows, viz.: “ The law allows the defendant to testify in his own behalf; but a failure to do so is not even a circumstance against him, and no presumption of guilt can be indulged in by the jury on account of such failure on his part.”
The Act of our last Legislature providing that a defendant in a criminal case may testify in his own behalf expressly provides as follows:
“But the failure of any defendant to so testify shall not be taken as a •circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.” Gen. Laws, 21 Leg., p. 37.
The instruction was substantially in the spirit of the statute. But it is insisted that the court should not have alluded to the matter, as it was calculated to call the attention of the jury to the failure of defendant to testify, and that that of itself would necessarily be prejudicial to defendant. We are cited to Hunt’s case, ante, 149, wherein in quoting from an Illinois case the language used is, “and in such case court and counsel should studiously avoid all allusions to the subject.” Baker v. The People, 105 111., 452. Our statute does not prohibit the court from alluding to the subject—it is counsel who are .expressly inhibited from alluding to or commenting upon defendant’s failure to testify. The court is not inhibited from alluding to and explaining defendant’s rights in the matter. It may or may not prove injurious or prejudicial for the court to allude to the matter—is impossible for us to tell. In another murder case, pending at this time before us, it is complained that the court erred in refusing a special requested instruction defining the law with regard to the evidence of a defendant who had testified. We think it a matter entirely discretionary with the court whether it will instruct the jury at all as to a defendant’s rights as a witness in his own case.
In Vermont it seems that the court is bound to instruct the jury that *474they could not consider defendant’s omission to testify in his own behalf against him. State v. Cameron, 40 Vt., 556.
In this instance the charge complained of was unquestionably in conformity with the statute, and we can not see that it was calculated to-prejudice the defendant. Being a correct enunciation of the law, we will not presume that the court in giving it abused its discretion, nor that it-was in any manner injurious to defendant.
We have discussed all the questions raised in the case. For error in the admission of evidence as above pointed out, the judgment is reversed and cause remanded.
Reversed and remanded.
Hurt, J., absent.