Conviction for murder; punishment, twenty-five years in the penitentiary.
Condensing the facts, it appears from the standpoint of the state witnesses that appellant had taken a liking for' another negro man, apparently younger and more attractive than her husband. Deceased owned his home, the family consisted of deceased, appellant, and a sixteen year old daughter of the latter by a former husband. A neighbor across the street testified that about eleven o’clock on the night of the homicide he saw appellant go into her home. He saw no one with her. Between the time of her going in and that of the shooting, which was about one o’clock at night, this witness said he heard some one “walking over there about four or five times. * * * From the walking they are bound to have had on shoes as I would not have heard them otherwise.” This witness further testified that he heard the screen door over at the house of deceased open and slam, but did not see any one. Deceased was sleeping in a bed *460outside of his house. When the gun went off, this witness testified that he got up and went to his door and heard some one say, “Baby, call Mr. George. I think Dad is trying to kill himself.” The given name of this witness was George. Witness at once dressed himself and went over to deceased’s house. He found deceased sitting up in bed, shot in the neck. The shooting was done with a shotgun and made a good-sized hole. The wadding from the gun was in the neck of deceased who spit up some of it shortly before he died. A shotgun was under the bed. Deceased was carried to a hospital, where he died the next day. The above witness testified that when he got over to the place, he asked deceased how it happned, and the latter said he did not know. Appellant was standing near at the time. A doctor testified that after deceased got to the hospital he asked deceased who shot him; that deceased hesitated, and then said he did not know. Later, and after the sheriff of the county reached the hospital, and after being told that it would be impossible for him to recover, deceased said to the sheriff, who testified to this statement as follows: “My wife shot me. I won’t lie to you.” The sheriff and the doctor who waited on deceased testified that they observed nothing about his person indicating that he had been drinking liquor; that there was no odor of whisky or anything of that kind about him. Another doctor testified to the contrary.
Nothing in the record indicates or suggests animosity toward deceased by any other person, or any likelihood of the shooting being done by any other person than appellant. The fact that at a time when deceased was not certain whether he was going to die he said, in the presence of his wife, and with hesitation to the first doctor who saw him at the hospital, that he did not know who shot him, and that later, when informed that he could not live, he said appellant shot him, would be for reconciliation by the jury. The facts seem sufficient to justify the conclusion of guilt.
We find in the record six bills of exception. Bill No. 1 complains at some length of the admission of the dying declaration. The objections set out cover more than a page of the record, but do not appear to be verified by any statement of the facts which would lead us to conclude-that the court erred in overruling same. The second bill of exception also complains of the admission of the dying declaration. The fact that said statement was made an hour or more after the shooting would in nowise affect its admissibility as such dying declaration. The objection to its admission seems rather indefinite.
By two bills of exception complaint is made of testimony showing the age of deceased, the objection being that such testimony would tend to inflame the minds of the jury against appellant, and that it was but the opinion of the witness. The testimony appears material for what it was worth as supporting the state’s theory of motive, that is, that a younger and more attractive man had appeared and was making his way with *461appellant. Another bill complains of the admission of testimony showing that appellant was associating with the younger negro referred to whose name was Scott. We think this testimony admissible. It was shown that on the night of the homicide, and just before appellant came to her home at eleven o’clock at night, she and this negro Scott, and another negro man and woman, were off together somewhere, and that appellant had expressed to a witness who so testified, her liking for Scott.
Bill of exception No. 5 sets out approximately two pages of questions and answers, following which this statement appears: “All of which testimony was objected to by the defendant at the time it was offered upon the following grounds, to-wit,” and then a number of objections are set out. Much of the testimony, and many of the questions and answers thus appearing in the bill were not objectionable. Such a bill can not be appraised by us.
The remaining bill of exception complains of the admission of the testimony of a witness who said that he was acquainted with deceased, and that from his appearance and general demurrer it was the opinion of witness that deceased was about fifty-four or fifty-five years of age. This was objected to on the ground that witness had been in the courtroom after the rule had been invoked, and that the statement was but his opinion. The discretion of trial courts in the enforcement of the rule is a matter with which the appellate courts rarely interfere, and only in case of manifested abuse. As to the materiality of this testimony, well ave already above stated that we think it was admissible.
Finding no error in the record, the judgment will be affirmed.
Affirmed.