majority">SAYRE, J.

On the facts shown the trial court was-well justified in admitting evidence of the statement made by deceased as her dying declaration, and this though she survived the wound and her declaration of the circumstances for 10 or 11 days and subsequently made a contradictory statement, as one of the witnesses testified. — 1 Mayf. Dig. p. 287, §§ 26-72; Moore v. State, 12 Ala. 764, 46 Am. Dec. 276; Lewis v. State, 178 Ala. 26, 59 South. 577.

There was no error in refusing the special charge requested by defendant. It had a tendency to excite speculation, whereas cases should be.determined upon the facts as the jury finds them from the evidence. If by “theory” defendant had reference to his own theory of innocence, that was not a matter about which the jury needed to give itself concern. If, on the other hand, the charge was intended to state the proposition that the law presumes innocence until guilt is established beyond a reasonable doubt, as defendant’s citation of authorities would seem to indicate, not only was that proposition covered by other instructions given at defendant’s request, but it was an imperfect, confusing, and misleading statement of that law, and was for that reason properly refused. — Fowler v. State, 100 Ala. 100, 14 South. 860.

Affirmed.

Anderson, C. J., and McClellan, and Somerville, JJ., concur.

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