¶1The defendant was convicted of murder in the second degree. During the trial the defendant reserved certain exceptions to the rulings of the court, which are presented for consideration of this court.
¶2A witness testified that she saw defendant stab deceased in the chest, and as deceased attempted to seize the defendant, she saw one Henry Williams,' who was not on trial, stab decéased in the back. The court properly overruled ’ the motion of defendant to exclude so much of said evidence as referred to Henry Williams. He was present with defendant, and without provocation, so far as the record discloses, interfered apparently to prevent deceased from seizing defendant after he was stabbed by defendant. We cannot say there was no evidence in the record, which would authorize a' jury to infer that the parties acted in concert.
¶3The proper predicate for the admission of “dying declarations’' is stated in Justice v. The State, 99 Ala. 180, where the authorities are collated. Applying the rule there laid down, we are of opinion, the preliminary proof did not come up to the strict rule required. It is true, the witness testified, that deceased ‘ ‘said he would die.” This statement was made some time after the *21injury, and the simple statement, “that he would die,” does not show that deceased believed that he was in ex-tremis ; that death was impending.
¶4The declarations reduced to writing as dying declarations, were properly admitted. .He stated that “he believed he would soon die.” The physician who attended him said that the “deceased was very low, and that he did not think he would live many hours. ’ ’
¶5It was competent to show that Willie Faunfield. who had been introduced as a witness by the defendant, was then charged by separate indictment for the murder of deceased, and if she had denied that she had knowledge of such a charge, it would have been competent to have proven the fact in any legitimate way, and for this purpose, the indictment itself might properly be introduced. This evidence, however, was not competent to establish the guilt of the defendant who was then on trial, but only to affect the credibility of the witness Faunfield. The record nowhere shows that the witness answered the question, as to her knowledge, that she was charged also with the commission of the offense.
¶6The witness Williams, for the defendant, was asked the same question, to which he answered, “I suppose so.” By this answer the State had the full benefit of the principle upon which such proof could be made, and the court should have sustained an objection to the reading of the indictment against him.
¶7The State was allowed to prove that the witness Willie Faunfield “said that certain articles of clothing that she was washing were the property of defendant.” The only principle upon which it was permissible to show that the witness washed the clothing of . defendant was, that it was a circumstance, to be considered with other facts in the case, as tending to show such relations existed between her and the defendant, that probably her testimony was biased in his favor. Her mere declarations, in his absence, however, were not competent evidence against him for such a purpose. They were hearsay pure and simple. ■ •
¶8Charge No. 2 requested by the defendant was properly refused. The insertion of the words “previously formed design,” rendered the charge erroneous as a correct definition of murder in the second degree.
¶9•There are other exceptions, but they are of such a character, as will not probably arise on another trial,-
¶10Reversed and remanded,.