¶1delivered the opinion of the court.
¶2The testimony of Lawrence Latham relating the conversation between Dudley Drane and Bud Bums was properly admitted. In view of the tragic development, so soon after the conversation, and of the dying declaration of Jeff Harden, it was clearly competent to show that Bums told Drane: “We have got everything fixed. We will put Jeff Hardin out of the way to-night” —and Drane answered, “Are you sure of that ? ” and that Burns replied: “I am sure that everything is fixed. He will not appear against us in court.” Reflecting that the two parties to this colloquy are the very ones named as the assassins by the dying declaration, and that they were the two interested in his taking-off, its competency is manifest.
¶3It would not have been error not to overrule the objection to the statement of the district attorney in argument that “nobody on earth has denied what Lawrence Latham said about this,” because Burns might have been produced as a witness to deny it; and so it is too great a strain to hold these remarks as a comment on the fact that the accused did not testify. The court, however, out of abundant liberality, offered to instruct the jury *185■to disregard the remarks of the district attorney, that they were improper and not to be considered by the jury at all, or, at the election of the defendant, offered to enter a mistrial in the case:. Defendant elected to proceed, and the court told the jury to disregard the remarks entirely.' Surely a reversal on this ground would be absurd.
¶4The dying declaration was properly admittéd. 2 Wigmore, Ev. §§ 1447, 1448.
¶5Affirmed, '