¶1 ON REHEARING.
¶2 June 27, 1924.
¶3 — Appellant strongly urges the incorrectness of our conclusion that the learned trial judge properly held the predicate for the admission of the alleged dying declaration of the deceased, as not established. We have again carefully reviewed the three bills of exception in the record complaining of this action of the court below.
¶4 Deceased was shot in the leg, a wound which ordinarily might not be deadly in character save for the fact that a large blood vessel was severed. No statement of the dangerous character of the wound was made to her. She lived with her husband and two little children and the shooting appears to have been the result of domestic trouble. Early the next morning after the shooting the three witnesses, complaint of the rejection of whose testimony appears in the three bills of exception mentioned, went to the home of deceased and what took place appears in said bills of exception: The testimony of said witnesses was heard by the learned trial judge in the absence of the jury. Mr. Merrill, the first of said witnesses, was asked by appellant’s counsel what deceased said that would lead him to believe that she realized her serious condition. His reply was, “Well, I went in and I says, ‘Carrie, tell me how this all happened,’ and she says, ‘Well, Mr. Oscar, it come up this way, — Snooks (her three year old boy, and she also has one about one year and a half old) had spilled some water on the floor and left his wagon down in the field, and he was crying and she wanted to whip him and Oscar didn’t want her to and this was the starting point of the trouble;’ and I says, ‘Well, Carrie, they will arrest Oscar for this,-’ she says, ‘Well, I don’t want him arrested,’ she says, ‘I was as much to blame for it and I want him to take care of the children. ’ ” The witness was asked if deceased said anything about dying and replied that she did not, but -from her talk about not wanting Oscar arrested, and him to take care of the children, witness inferred that she thought she was going to die. Witness says she was perfectly rational, and that the above is all she said to him. The same testimony appears from each of the other two witnesses. One of the three witnesses, Caroline McKinney, after testifying to the court that deceased said, “I want Mr. Oscar, I don’t want you to arrest my Oscar, I was as much in fault as he was,” and she just did not say anything else, only said she wanted *104 him to take care of the children. The witness was asked by appellant’s attorney if she understood by that she meant when she was gone and witness replied that she understood it that way.
¶5 Nothing appears in any of the bills of exception beyond what we have set out. The argument in appellant’s motion that the deceased said “When she was gone,” is not borne out by the bill of exceptions. The woman was living with her husband and two children. She was shot in the leg. She expressed a desire that her husband be not arrested, that his presence was necessary to take care of the children. The fact that his services were deemed necessary in taking care of the children, in nowise seems to us to reflect the fact that the woman expected to die. She had no one else there to take care of the two children while she was confined in bed with her wound, and we are unable to bring ourselves to accept appellant’s version of the matter, or to believe that the language used' by her imported or was capable of the inference that she thought herself in a dying condition. We regret that we cannot agree with appellant in the contention so earnestly made by him here, but upon re-examination of the matter are but impressed with the belief that our original disposition of the case was correct.
¶6 The motion for rehearing will be overruled.
¶7 Overruled.