Opinion. bile in which the deceased undertook the journey became stalled on the way, and he with a friend rode to his father's home on two mules. His sister, Miss Iva Poff, testified that she was aroused and alarmed by a pistol shot in the hall of the dwelling; that she went there quickly and found her brother, the deceased, at the door of his wife's room, she being in the room, he with a pistol advancing on his wife, and as she (witness) believed about to shoot her; that she got between them and pushed him to the end of the passageway to the door of a porch, at one end of which was her room and at the other the room occupied by the accused; that at or about the time she got her brother outside of this door and on the porch a shot was fired, apparently from a closed room, followed quickly by other shots; that the deceased reeled and commenced firing his pistol into the room. After the shooting the deceased was found lying on the porch with a fatal wound, of which he died the next day. The bullet which killed him entered his face below the ear at the hinge of the cheek bone and ranged backward through the brain; and he also had a broken leg caused by another shot. On the contrary, the evidence which tends to show that the accused shot in self-defense may be thus stated: After he had retired for the night, the wife of the deceased came to the door of his chamber in her night clothes and knocked. In response to his inquiry she said she came for a bottle containing a liquid used for shampooing, which she said she had placed on his bureau during the day, the bureau being near an open window, and the bottle being placed there as she explained, in order to keep it out of the reach of her children, of whom she had three. She had been sitting on the porch washing her baby's head, and had gone off and forgotten the bottle and brush. She, as well Opinion. as all of the other inmates of the household, expected the deceased momentarily, and while waiting she determined to wash her own hair, and pursuant to this purpose went to the door of the accused, as stated. Just about this time, the deceased, who his wife testified was intoxicated, came to the door and took her away to their own room. He had a pistol in his hand, and an altercation followed, during which she was trying to explain to him the innocence of her purpose. During this altercation he fired his pistol in the passage, with what purpose does not appear. She continued to attempt to reason with him, but he returned to the door of the room of the accused, having previously said, "Where is the d- son of a b? I am going to kill him," and this language the accused also heard coming from the deceased. The accused testified that when he heard this language was the first time he had any thought that the deceased had any enmity against him; that after hearing it he got up out of his bed and went to the bureau drawer and got a pistol; that the deceased pushed the door of his room open and began shooting at him. One of the bullets struck the mattress upon which the accused had just previously been lying, and two other shots were fired. at him and into the room by the deceased. That until the deceased pushed the door open and commenced firing at him, the accused did not fire, but after this he fired two shots at the deceased, one of which killed him. [5-7] After these occurrences and while the mother and sister of the deceased were attempting to care for him, Iva Poff, a sister of the deceased and a witness for the Commonwealth, was asked and permitted, over the objection and exception of the accused, to testify thus: "Q. Did you hear what Dr. Herman Poff told his mother when she got there? Opinion. "A. I did. "Q. State to the jury exactly the words as near as you can, what your brother said to your mother when she got there. "A. He said, 'Mamma, she was right in bed with him.' The mother of deceased likewise testified on the same subject thus: "Q. What did he say to you, if anything? "A. "Mamma, who would have thought anyone would have shot me.' The next thing he said, 'Mamma, she was right in bed with him."" This testimony is also made the subject of a bill of exceptions. The trial court admitted it upon the ground that the statement of the deceased was made within half a minute after the last shot, and held it to be a part of the res gestae. The witnesses estimated the time to be as certified that is, at about half a minute after the last shot. The facts are that the mother had retired and was in her chamber downstairs when the first call for her came from upstairs. She did not realize the seriousness of the situation, and said that she did not respond immediately because she was undressed. She went to the telephone to call another son who lived not very far away, but was unable to get any response. She then went out into the yard and called aloud for this son and thus made him understand that his presence was needed, and thereafter she returned to the house and went upstairs. These facts must be considered in determining the length of time which elapsed between the last shot and the statements of the deceased in question as well as the unreliable estimate of half a minute which the witnesses made. Whether it was half a minute, or more or less, it is apparent to us that the statements referred to are the Opinion. mere recital of a past occurrence and cannot be considered as part of the res gestae. It is not claimed to be admissible as a dying declaration, and cannot be held to be admissible on this or upon any other ground. If the deceased had shot the accused, and the degree of his crime were in issue, then such a statement showing the state of his own mind and the facts as they appeared to him, in order to determine the degree of his responsibility, would doubtless have been admissible. It must be borne in mind, however, that while the state of mind of the deceased and the matter as it appeared to him would be most pertinent if he were on trial, it has little if any relation to the rights of the accused, who cannot be either convicted or prejudiced because of the state of mind of the deceased. As to the accused, the statement is hearsay and inadmissible. Except the fact that the wife of the deceased was at or inside the door of the bed chamber occupied by the accused and the inferences to be drawn from this circumstance, this inadmissible statement of the deceased is the only evidence in the case tending to show any improper relations between the accused and the wife of the deceased. In this connection it is noted that the tragedy occurred on the night of August 6th, when the weather was mild, when many doors and windows were open. The porch referred to faced the public road and was in full view thereof. The dwelling was occupied by several other adults. The woman whose character is involved had the care of three children. The room at the other end of the porch from that occupied by the deceased and the adjacent one were occupied by two sisters of the deceased, and these three had been together only a short time before in perfect friendliness. There were communicating doors between the rooms occupied by these two sisters and the room occupied by the wife of Opinion. the deceased and her children. The elder of the sisters had been in that room a very short while before the tragedy in order to recover one of her garments which she had left there, and the absent husband was expected. Under these circumstances, it is apparent that the admission of this testimony was highly prejudicial to the accused, and error of such serious consequence as entitled him to a reversal upon this ground. In this connection, it is noted also that the attorneys for the prosecution undertook, by insinuating questions to the accused and to the wife of the deceased, to show undue and improper intimacy, as by the writing and receiving of a note and being confronted therewith by Iva Poff, a sister of the deceased. All of this was categorically denied by the witnesses, and no effort was thereafter made to establish the facts insinuated either by Iva Poff or any other witness. While the liberties of a cross-examiner are very great, they do not extend far enough to justify such a practice. It should be avoided by prosecuting attorneys and should be condemned by the courts. Another exception grows out of the giving of instruction No. 11. [8] "The court instructs the jury that if you believe from the evidence beyond a reasonable doubt, that the accused allowed the wife of the deceased to get in his bed or allowed her to enter into acts leading in the mind of a reasonable man to a commission of the wrongful act of illegal intercourse with the wife of the deceased and had in contemplation that the deceased, the husband, would or might interfere or would or might make an assault upon the accused because of great passion aroused by such act on the part of the accused and the accused armed himself with a deadly weapon with intent to take the life of the deceased or do him some |