Appellant was convicted of murder in the second degree and his punishment assessed at ninety-nine years in the penitentiary.
The offense was alleged to have been committed before our murder statuté was changed doing away with the two degrees of murder.
It appears that the appellant has been tried several times. In every instance before this he was convicted of murder in the first degree with the death penalty assessed. This is the second appeal. The first is reported in 73 Texas Crim. Rep., 367. This trial was in accordance with the previous decision herein except two questions which did not arise on that trial. In order to pass upon the questions herein raised it is unnecessary to make a statement of the testimony. The charge of the court is an admirable one and correctly submits to the jury every issue that was raised by the testimony.
However, it is sufficient to say that the evidence on behalf of the State was clear and amply sufficient to show that appellant was guilty of the murder of Mr. Blake, the deceased, and also his, defendant’s, wife, Jane, at the same time and in the same transaction. In fact, that it showed appellant assassinated both said Blake and his wife. His contention and testimony, if believed, would have shown that he was entirely justifiable in that he killed deceased as he took him in the very act of sexual intercourse with his wife. The jury, however, did not believe his contention and testimony. In fact, the testimony was clearly sufficient to disprove his contention and testimony. All these matters were for the jury and the lower court.
Appellant’s bills 2 and 3 show that he objected for various reasons to the testimony of Dr. O’Earrell to certain statements of the deceased. *652The court expressly held that this testimony was admissible both as res gestae of the killing and as the dying statements of deceased. The testimony was clearly sufficient to sustain the court’s holding on both grounds. The same question was decided against appellant on the previous appeal.
Appellant’s bill 4 shows that he objected to the testimony of Dr. O’Farrell as to the res gestae statement of appellant’s wife to the effect that when he told her Blake, deceased, was going to die, that she said, “Poor man, poor man, he lost his life trying to protect me.” And his bill No. 6 shows that he objected to the same testimony of Mr. Wooley. The court below held that this statement was made to both of these witnesses voluntarily and at such time and under such circumstances as to constitute it res gestae. The ruling of the trial judge was correct in both instances, as was also held on the previous appeal herein. The authorities are there cited. It is unnecessary to repeat them.
His 5th bill shows he objected to the testimony of Mr. Young, in substance that he, Young, heard deceased’s wife complaining to Mr. Blake, deceased, several hours before the killing, wherein 'she requested Mr. Blake to not let Mr. Blair go to Bosenberg, and when he asked her why, she said that Mose (appellant), was always threatening to kill her and that if Mr. Blair went Mose would hurt her, and that she would not stay there. That Mr. Blake said to her, “Don’t go, go upstairs (in the gin house), and stay until Mr. Blair comes back.” The court properly admitted this testimony, stating that it was admitted because the conversation was in the presence and hearing of appellant. The evidence was sufficient to show that it was in his hearing and presence. Under the circumstances, this testimony was admissible. The same character of testimony of Mr. Bobt. Blair was held admissible on the former appeal.
The testimony clearly shows that several months before this killing appellant had assaulted and seriously and severely cut up his wife, in Matagorda County where they then lived and that he was indicted for assault with intent to murder her; that on that occasion, after he had so cut up his wife, he was told that he had killed her and he told Mr. Carr, the officer, that he was glad, that he intended to, and would kill her. There was other testimony clearly showing that about ten days before this killing, while he was at work for Mr. Blake (deceased), and his partner in Fort Bend County, that he went to Bay City in Matagorda County where his wife was and got her to come to appellant’s camp to do the cooking and that this was about two weeks before his said case for assault on his wife was set for trial, and that his purpose in getting her away from Matagorda County was to prevent her testifying against him in that case; and it is the State’s contention, and the evidence tends to show that he intended to go to the extent of killing her to prevent her testifying in that case. There was other testimony showing his hostility against her shortly before he killed her and Blake and his *653threat to kill her. He denied all these facts and claimed that he and his wife were on the best of terms at all times np to the very time he killed her and appellant. The testimony, therefore, of Mr. Carr, as stated above, under the circumstances, was clearly admissible, as held by the trial judge.
Also the testimony of Mr. Carr as to the effect that appellant’s wife had, nearly every week for a year' or two before this killing, complained to him of appellant’s ill treatment of her. The evidence and qualification of the bill shows that the officer communicated these complaints to defendant at the time, and under the circumstances of this ease as held on the previous trial, the testimony of the officer, Mr. Carr, was admissible.
As stated, all these questions were in substance and effect held against appellant on his previous appeal. They are sufficiently stated in said opinion.
We now come to the two questions which were not raised on the previous trial. On a previous trial of appellant the witness, Robert Blair, gave material testimony against him in favor of the State. On this trial it was shown that this witness was out of this State. That he was in Idaho and his presence could not be had. Thereupon the State, after proving up his former testimony, the court permitted its introduction on this trial. Appellant objected on the ground that it violated his constitutional right to be confronted by the witness personally against him in open court. This question, in a great many decisions of this court, has been held against appellant. In 1 Branch’s Annotated Penal Code, section 76, is collated a large number of these decisions. It is unnecessary to copy them here. They will be, and are now, adhered to by this court; and it will not follow the overruled Cline case, 36 Texas Crim. Rep., 320, nor the Kemper case, 63 Texas Crim. Rep., 1, to the contrary holding. It is unnecessary to again discuss the question as it has been so many times discussed and the authorities cited in the said decisions collated by Mr. Branch.
The only other question raised is by appellant’s 8th bill, which shows that over his objections, the court permitted Dr. Brooks to testify what appellant’s wife, Jane, said to him, to the effect that she went into the gin house to be in a safe place so that she could have protection from her husband. That she went upstairs and got to bed and that the next thing she knew appellant was standing over her and that she was so close that when he shot it set fire to her clothes. This testimony was objected to by appellant because it was hearsay, not res gestae, and that it was in effect allowing the wife to testify against hér husband. The court admitted this testimony as her dying declaration. The statute, article 808, Code of Criminal Procedure, authorizes the dying declaration of a deceased person to be introduced in a ease against an accused where he is charged with killing such deceased person. In' this case appellant was not indicted, nor on trial, for killing his wife, but he was *654on trial for killing the deceased, Blake. Again, article 795, Code of Criminal Procedure, expressly prohibits the wife from testifying against her husband in any criminal prosecution except for. an offense committed by him against her. This prosecution, as stated, was not a prosecution against appellant for the killing of his wife. It is true that he killed both, deceased and his wife, at the same time and in the same transaction, but not by the same shot. Said dying declaration by her was prohibited under both articles. Under no contingency shown in this record was said testimony by Dr. Brooks admissible.
Por this error alone the judgment is reversed and the cause remanded.
Reversed arid remanded.