¶1Appellant's counsel insists that at the time the original opinion was written the evidence was misinterrupted. It is his position that that part of the conversation between the witness Tenie Mitchell and the appellant in which appellant asked her "what was the matter" and she replied that "Julia said that he had drawn a gun on her" was so disconnected from the homicide upon which the prosecution is based as to bring it within the hearsay rule. With this in mind, we have carefully reviewed the statement of facts.
¶2Appellant shot his wife Julia and a few minutes later killed Lucinda Daniels. The conviction is for the latter homicide. He was a young man and had been married but two years. Lucinda Daniels was the aunt of appellant's wife. In his testimony he sought to justify the homicide. He said that on the night preceding the homicide, he was attacked by four persons. The deceased was one of them. She had a pistol; two of the others had knives. He killed her the first time he saw her thereafter. He was going out of the gate when she called him to stop, cursed him and approached him over his protest. She had her hands under her apron and he thought she had a weapon and intended to kill him. He fired in order to protect his life. He said that he had a gun for the purpose of hunting some birds; that it was lying on the table; that his wife got possession of it and attempted to shoot him. He took the gun away from *274 her and shot her. This too, was in self-defense, according to his theory. The killing was described by eyewitnesses thus: Appellant and his wife came from around the house, going in the direction of the fence. His wife was going fast. Appellant raised his gun and shot her. She fell, after which he shot her again. His wife's aunt, Lucinda Daniels, came out of the gate and started down the track, running and slapping her hands. He saw her and turned to meet her. She approached him with her hands raised. The gun fired and she fell. The witness Tenie Mitchell, who with her husband, lived in the same house as did the appellant and his wife, testified that after she and her husband had retired, appellant aroused them looking for his wife. The next morning he was seen by this witness at his home with a gun in his possession. The wife had gone on an errand, and upon her return, went to the store again. Appellant went to the home of his aunt. Later both of them returned. The wife was crying. The witness had a conversation with her; also with the appellant. In the conversation with the witness, he asked her "what was the matter" and she told him that "Julia said that he had drawn a gun on her." His reply is set out in the original opinion.
¶3The witnesses were negroes. The testimony is only partially in narrative form. It is our understanding of it that the two women were shot within a few moments of each other and that from the time the appellant first appeared at his home, not more than half an hour elapsed until the deceased was killed.
¶4We held in the original opinion that the conversation in question was exempted from the hearsay rule because it was res gestae. Res gestae declarations may precede, accompany, or follow the transaction to which they relate, but it is only when they are wrought up into and emanate from it that they can be rightfully admitted as res gestae. Wharton's Crim. Ev., Vol. 1, p. 502. Apparently the testimony in question comes within this principle, and to our mind, its admission is justified by another rule of evidence. Appellant claimed that both women were shot in self-defense. From the testimony, it is to be inferred that according to his theory, they both attacked him upon the night before. But a few moments intervened between the shots that wounded both his wife and killed her aunt. The state of mind at the time he shot the deceased, Lucinda Daniels, was a proper subject of inquiry. The conversation with Tenie Mitchell was one of the means available to the State to enable the jury to determine the state of mind of the appellant in order that they might determine his guilt or classify the grade of the offense. The facts and circumstances immediately attending the homicide were admissible in evidence. Cyc. of Law Proc., p. 889, note 42 and cases cited. In the instant case, this included all that took place after appellant arrived on the scene of the homicide up to the time *275 that he killed the deceased and would embrace all conversations touching the parties to the transactions in which he engaged. The transactions are so interwoven that the facts pertaining to one cannot be segregated from the other.
¶5The motion is overruled.
¶6Overruled.
¶8In an application to reopen the case, appellant directs attention to the fact that it was stated in the opinion on motion for rehearing that Julia, the wife of the appellant, was killed. In his motion he says that she was not killed. The statement of facts shows that she was shot and leaves the impression that she was killed. However, whether she was killed or not is unimportant. The conviction is for the killing of Lucinda Daniels, the aunt of appellant's wife.
¶9The opinion has been amended to show that within a few minutes, appellant shot Julia, his wife, and shot and killed Lucinda Daniels, her aunt. The position taken in the application under consideration that we were mistaken in stating that a few minutes elapsed between the two shots is not in accord with our understanding of the record. It is true that the beginning of the quarrel with his wife, as observed by the witness Tenie Mitchell, was about thirty minutes before the death of the deceased. From his arrival on the premises until the time he shot his wife, they were in conversation with each other. He was in possession of a gun. He protested that he had no intent to injure her. One time during the interval, according to the witness Mitchell, he was laughing and talking to the witness and said he wanted his wife to get his brass knucks; that she had mislaid them. We quote from the testimony of the witness Mitchell upon the subject:
¶10"I said, `Julia, why don't you get his brass knucks and give them to him if you can find them.' He said she mislaid them, she can't find them. I said if they are in here I will help her find them and we went to hunting them.
¶11It wasn't long after that until the shooting took place. After I couldn't find the brass knucks I went out of the house and left there and went to the wash place. I thought maybe somebody else could talk to them and I went and got Reverend Washington to talk to them, and while I was gone, he shot her."
¶12After going after the Reverend Washington to talk to them, the witness returned in a few moments and found that both the wife and the aunt had been shot. The witness estimates the intervening time at five minutes. *276
¶13From the testimony of Burton, one of the eyewitnesses, these excerpts are quoted:
¶14"I was there the day of the shooting and I saw a part of it. The part of it that I saw was, I seen when the young man shot his wife and I seen the young man and young lady come out — she was going over seemingly to the corner of the fence. . . . When I seen them they were going to the corner of the fence and I seen the young man when he raised his gun and shot; he was shooting at his wife; at that time she was going from him; she was going pretty fast but I couldn't say she was running or walking.
¶15I saw him raise his gun and shoot her; he shot at her twice but I couldn't say he hit her; he shot at her after she fell. . . . Then when she fell down it seemed to me he broke his gun — I do not know whether he put a shell in or not — then he turned and came out of the yard, . . . and started down the track towards the boardinghouse about two rail lengths and looked back and saw this other woman coming down the track towards the quarters.
¶16When I seen her coming she was running seemed like, she was slapping her hands together like that (witness indicating).
¶17When he seen her he turned to meet her and went about a rail and a half length of her, he raised his gun to shoot at her; she raised her hands and the gun fired about the time she reached the gate. Yes, sir, the gun fired. She fell then and he turned and went back down the track going towards the boarding-house."
¶18A re-reading of the testimony confirms us in the view that the proper disposition has been made of the case, as indicated in the opinions heretofore rendered.
¶19The motion is denied.
¶20Rehearing denied.