Appeal from the Circuit Court of Henry.

Tried before the Hon. J. M. Carmichael.

.The appellant was indicted and tried for the murder of Jim McSwain, was convicted of murder in the first degree and sentenced to be hung. After the State had introduced evidence showing that Jim McSwain had been shot and died from the wound, and also evidence tending to show that the defendant did the shooting, it introduced Dr. W. E. Pate as a witness, who testified that he was a practicing physician, and was called into see Jim McSwain on the night he was shot; that during the next day McSwain told him that he thought he would die, to which the witness replied that he thought so- too ; that later during the day witness told McSwain that he would surely die, and had only a few hours to live, and upon being told this, McSwain said that he thought he would die. The witness then testified that McSwain lived only a few hours after this declaration. Thereupon the State asked the witness if McSwain made any statement, and what was such statement? The defendant objected to this question, upon] the ground that it was not shown that the witness was conscious of an early dissolution, and that no proper predicate was laid for the admission of dying declarations. The court overruled this objection, and the defendant duly excepted. The witness Dr. Pate answered that McSwain stated at that time that Lum DuBose, the defendant, killed him and shot'him with a pistol. The defendant moved to exclude this evidence from the jury, upon the same ground upon which the objection to the question was based. The court overruled the motion, and to this ruling the defendant duly excepted.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charge, and' separately excepted to the court’s refusal to give the same as asked : ‘ ‘The court instructs the jury that the dying declarations of the deceased made to Dr. Pate are not entitled to the same credit and force as if deceased was still alive and testifying in the presence of the jury on oath, that it is a species of hearsay evidence and is intrinsically weaker than if the declarant was present and subject to cross-examination, and the jury alone are the judges of its weight and force.’’

The court erred in admitting the testimony of Dr.'Pate, as to the dying declarations of the deceased. — Pulliam v. State, 88 Ala. 1; Hammil v. State, 90 Ala. 577 ; Young v. State, 95 Ala. 5; Ward v. State, 78 Ala. 441; Kilgore v. State, 74 Ala. 1; Justice v. State, 99 Ala. 180.

The written charge requested by defendant should have been given. Its true purport is cautionary. It refers to the source, not to the effect of the testimony. — 1 Greenl. Evidence, § 162; Roscoe Or. Ev., 4, 35; Moore v. State, 12 Ala. 764 ; Montgomery v. State, 80 Ind. 338 ; Lambeth v. State, 23 Miss. 350; Lipseomb v. State, 23 So. Eep. (Miss.) 210.

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