¶2 January 17, 1912.
¶3 This case was reversed and remanded at a .former day of this term, and the State has filed a motion for a rehearing alleging that the court was in error in holding that the evidence of the witnesses named ought to have been admitted, tending to impeach the dying declarations. We are referred to the case of Tomerlin v. The State, 26 S. W. Rep., 676. This case has no application to the case under discussion. The evidence was not offered to impeach any declaration already introduced in evidence, but was offered as original evidence, and the court correctly held that the evidence was inadmissible, as it was not offered as a dying declaration, and no facts or circumstances were introduced in evidence which rendered it admissible. In this case if the State had not introduced the dying declarations, the evidence of the witnesses would have been inadmissible, but when the State introduced the dying declarations, then the ^contradictory statements became admissible in evidence. We are next referred to the ease of McCorquodale v. The State, 54 Texas Crim. Rep., 357. In this case the rule is stated: “Where dying declarations are admissible in evidence other statements of deceased contradictory of the dying declarations are usually admissible, that is, if they tend to impeach or contradict or depreciate the value of the dying declarations.” This is the rule announced in the original opinion in this case, and why the evidence of the witnesses was admissible. The evidence offered contradicted and tended to impeach the dying declarations. While in the McCorquodale -case the evidence was held not to contradict the dying declarations, in this case no such contention can be made. - The dying declarations state: “Defendant told them to stop; they did not stop; he raised his gun and shot at them. He shot twice and he then loaded his gun; T jumped out of the wagon and hollered at him not to shoot, when he (defendant) turned on me and said: ‘Ton God damned son-of-a-bitch, I will shoot you.’ ” This is all the evidence the State offered to show malice. The witness Ludtlce would have testified as shown by the bill: “The defendant proposed to prove by the witness J. M. Ludtke that he had a conversation with deceased about three or four days after the shooting of the deceased by defendant, and that deceased stated to him that he and the defendant were the warmest of friends, and had never had a particle of hard feeling between them; that they had had no controversy of any kind on the occasion of the shooting, and that, in his opinion, the defendant didn’t intend to shoot hiin at the time he did so, but that the shooting was purely accidental on the part of the defendant. That he and the defendant were both drinking, and that the defendant staggered back and stumbled over something, at which time the gun was discharged, in the opinion of the witness, accidentally, and the deceased was shot.” *628 This in positive terms contradicted the dying declarations, was very material testimony, and if true, supported the testimony of defendant, and under it he could not be convicted of murder. It is not the opinion of a witness, but a positive statement of facts, and under the authorities cited by the State, as well as appellant, was admissible. But see in addition to the authorities cited in the original opinion: Orange v. State, 47 Texas Crim. Rep., 337; Phillips v. State, 50 Texas Crim. Rep., 127; Strickland v. State, 13 Texas Crim. App., 364; Hamlin v. State, 34 Texas Crim. Rep., 368; Herd v. State, 43 Texas Crim Rep., 575.
¶4 Motion for rehearing is overruled.
¶5 Overruled.