or even ill treatment by the husband does not announcing a sound doctrine. We submit that necessarily destroy all the affection of the wife the case of State v. Leabo not only announces for him, yet the degree of that affection must, a sound rule, but a rule that has been univerto a greater or less extent, depend upon his sally accepted, and, further, that the case of treatment of her. The relation of husband and State v. Punshon has never been approved exwife is peculiar, in that all of the interests of cept by the Supreme Court of Missouri, and life concern them alike, and are so insepara- has been condemned by the leading text-writers ble from their thoughts of and affections for as announcing an unsafe and unsound rule. each other that it cannot be said, as a matter Mr. Wigmore, in section 1730 of his work on of law, that the estrangement of the husband Evidence, in a lengthy note, collates many of necessarily destroys the affection of the wife the leading cases on this subject, citing, among for him. It necessarily follows that the exist- others, State v. Leabo, supra. He also there ence of affection for him does not of itself pre-makes the following mention of State v. Punclude the loss of affection by him. Where the shon: 'In State v. Punshon, 124 Mo. 448, 27 relation is the subject of inquiry, and where it S. W. 1111 (1894) such evidence was, against becomes proper to investigate the treatment all precedent, rejected.' If this criticism is a of one towards the other with a view of de- correct one, and we submit that it is, the case termining that relation, it is proper to can- should not be followed. vass the treatment of the other towards that one. The treatment by each of the other casts a light into the otherwise dark recesses of the heart of each. The strength of that light is a subject for the jury, and may not be determined as a question of law. The letter of a wife, with whose murder her husband was charged, though written to a third person, was held admissible "to disprove the existence of the motive to commit murder, which the testimony for the state conduced to establish." State v. Leabo, 84 Mo. 168, 54 Am. Rep. 91.' "This case is squarely in point. It is based upon sound reason, has been cited by the elementary writers with approval, and has never been disapproved. "The case of State v. Leabo, 84 Mo. 168, 54 Am. Rep. 91, is also in point. In that case it was held that, on a trial of a man for murder of his wife, the prosecution having given proof of the conduct and expressions of the wife to show that their relations were unpleasant, the defendant may rebut it by letters of the wife to a third person, written from three to five months before her death and indicating affection for her husband. In that case, the court says: 'We do not decide that such testimony is admissible under all circumstances; but when the plaintiff makes it a part of his case to show the existence of bad blood between the husband and wife, in order to establish a motive for guilty conduct ascribed to him, it is admissible. If the state may introduce evidence of her declarations and conduct inculpatory of her husband, it is equally his right to have the benefit of her declarations and conduct, to meet such evidence; and what better evidence could there be of a husband's affection for his wife than her confidential letters to a friend and companion of her youth in which she declares that he is the "kindest husband in the world," "worth his weight in gold," and expressing a wish that, if that friend should ever marry she may "get such a man as she has." The evidence offered by Leabo was no more hearsay than that received in the case above cited. Will such evidence be admitted in a civil action, in resistance of a money demand, and refused in a criminal prosecution, in which one's life or liberty is at peril? Has the law less regard for the life or liberty of a citizen than for his goods and chattels?" "But it is said in the majority opinion that the case of State v. Leabo was overruled by the Supreme Court of Missouri in the case of State v. Punshon, 124 Mo. 448, 27 S. W. 1111, in which it was held, on trial of a husband for murder of his wife, her statements tending to show the affectionate character of their domestic relations are not admissible. We do not believe that this furnishes a sufficient reason for a refusal to follow the Leabo Case. It is true, of course, that, where a decision has been overruled by the court which rendered it, it can no longer be cited as a precedent in that court or in any subordinate courts of the same state. It may, however, be still followed in other jurisdictions if regarded as "Mr. Chamberlayne in his work on Evidence, in a note following section 2671, with reference to the admissibility of such declarations, and after citing the case of State v. Leabo with approval, says: "These declarations have been rejected as hearsay apparently under a misapprehension. State v. Punshon, 124 Mo. 448, 27 S. W. 1111.' "Mr. Wharton, in the latest edition of his work on Criminal Evidence, vol. 2, p. 1828, says: 'Where accused is on trial for uxoricide and there is evidence that the relations between him and his wife were unfriendly, it is relevant for him to introduce letters from her showing her affection for him' (citing Pettit v. State, supra, and State v. Leabo, supra). The author does not note the case of State v. Punshon, supra, at all. And again, the same writer, in section 904, on page 1696, embodies in his text the doctrine of the Pettit Case. The doctrine of the case of State v. Leabo is cited in Cyc. as a correct rule, volume 21, page 914. "And again, the case of State v. Leabo has also been followed in our own state, and that since it was overruled by the Supreme Court of Missouri. We refer to the case of Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 868, 123 Am. St. Rep. 889, and from the opinion in that case quote the following: 'In the original opinion we failed to treat one of appellant's assignments predicated on his twenty-sixth bill of exceptions, relating to the excluded testimony of Cleve Sanders. Appellant sought to prove by this witness that after the difficulty in the barber shop between Calloway and Early that they had made friends. It appears that the state, in order to show animus on the part of appellant towards deceased, proved a difficulty between Early and deceased about two or three weeks before the homicide in the barber shop at Mt. Calm, and this was followed up by proof on the part of the state by the witness Stirman that on the day preceding the homicide appellant had used language manifesting ill will towards deceased on account of the previous difficulty at the barber shop, and in addition to this testimony indicating ill will, the state also proved by Guion that appellant had said Calloway was a rascal, and he could not arrest him. In the face of this testimony on the part of the state, appellant himself testified that he and deceased had made friends with regard to the difficulty at the barber shop subsequent thereto. In addition to this he offered to show by the witness Sanders that he knew the defendant and deceased were friendly after the difficulty at the barber shop, because he had been informed by the deceased and the defendant that they had made up, and had agreed to forget and overlook said trouble, and that deceased and defendant informed said witness after the difficulty their feelings were friendly towards each other. We believe this testimony was admissible. The state's case against appellant was purely of a circumstantial character. The state proved appellant was present when Harmie Horn slew deceased, but was not able to prove any direct act on the part of appellant showing any actual participation in the difficulty. The case against appellant was mainly supported by proof of his animus growing out of a former difficulty between himself and deceased at the barber shop, and any proof, it occurs to us, was admissible which would show that the former difficulty had been settled and the parties were friendly, and here appellant proposed to show it both by expressions from appellant and from the deceased to the witness Sanders. This could hardly be said to be purely self-serving declarations; certainly not coming from deceased, and we hold this testimony was authorized. See Gaines v. State, 38 Tex. Cr. R. 229 [42 S. W. 385], Turner v. State, 46 S. W. 830, and State v. Leabo, 84 Mo. 168 [54 Am. Rep. 91].' "Since the case of State v. Punshon has not been approved by any court except that of Missouri, and since it is condemned by two of the leading writers on evidence and ignored by the others, and since the case of State v. Leabo is cited with approval in nearly all the elementary works on evidence and has been expressly followed by this court, we do not believe that this court should follow the case of State v. Punshon. It undoubtedly announces, as has been shown, an unsound rule, and one contrary to all other precedents. We have noted that in the opinion of the majority reference is made to the fact that, in the case of State v. Leabo, the deceased, Mrs. Leabo, 'was periodically slightly deranged before and after her marriage and, when so affected, expressed herself as weary of life.' It does not appear from the opinion of the court in that case that it regarded this fact as of any controlling importance. The declarations were held admissible 'to disprove the existence of the motive to commit the murder, which the testimony of the state conduced to establish.' Moreover, if that be regarded as a controlling feature in the case, we do not understand how it can affect the admissibility of the declarations generally, for their admissibility must depend upon their being in rebuttal of the contention of the state. In the Leabo Case, the wife had made declarations indicative of a bad state of feeling between herself and husband and thus indirectly indicating his lack of affection for her. If the husband was entitled in that case to introduce her declarations made to other parties at different times to rebut what was asserted in the other declarations, then in this case defendant was entitled to use similar testimony. The fact that mental derangement and insanity is involved had no material bearing on the question. Moreover, such an issue was not presented in the case of State v. Pettit, supra, and that case has been universally approved and nowhere disapproved. And again, the Leabo Case having been approved in our own state, and the rule in that case having been adopted in this state, we think it is too late to refuse to follow that case, unless the court is prepared to overrule the case of Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 868, 123 Am. St. Rep. 889, and no good reason for overruling that authority is suggested. In that case, no issue of insanity or mental derangement or any other fact of that character was involved. The point was squarely ruled that, since the state had introduced various facts and declarations tending to show a bad state of feeling between defendant and deceased, defendant was entitled to introduce the declarations of the deceased to the witness Cleve Sanders in rebuttal that he and defendant had made up and were friends. Under the Early Case, the testimony in this case was clearly admissible. If precedent can be invoked to settle any legal question, then this question is settled by the Early Case. There are, moreover, other decisions of this court which support our view. See Cole v. State, 45 Tex. Cr. R. 225, 75 S. W. 527; Id., 48 Tex. Cr. R. 444, 88 S. W. 341; Schauer v. State, 60 S. W. 249; Nelson v. State, 58 S. W. 107; Everett v. State, 30 Tex. App. 682, 18 S. W. 674; and Butler v. State, 33 Tex. Cr. R. 233, 26 S. W. 201. See, also, the case of Morrison v. State, 40 Tex. Cr. R. 457, 51 S. W. 358, where declarations of this character were admitted on behalf of the state over the objection of the defendant and a sentence of death was affirmed, the court ruling the declarations admissible as indicative of mental condition or emotion. See, also, State v. Baldwin, 36 Kan. 1, 12 Pac. 318; Commonwealth v. Howard, 205 Mass. 128, 91 N. E. 397; Gaines v. Relf, 12 How. 472, 13 L. Ed. 1071. In the case last cited, it was held that where it was material to show the state of mind of a husband toward his wife, his letters to a third person indicative of affection for her were admissible. Many other authorities might be cited, but we deem it unnecessary. No pointed authorities are cited to the contrary, except the case of State v. Punshon, supra, and we do not believe that case announces a sound doctrine, as we have shown. "(2) The evidence of the witness Minnie Thomas with reference to her conversation with the deceased, heretofore referred to, was admissible upon another and distinct ground from the one last discussed, viz., one of the facts introduced by the state as illustrating and establishing the bad relations existing between defendant and deceased was the established fact that they had separated as the result of their disagree ments. In other words, the state contended that, when Mrs. Brown was staying in Brownwood and defendant was on his farm, they were separated in the ordinary sense of that term. From this the jury might and probably would infer that they were lacking in affection for each other. It, therefore, became material and relevant for defendant to introduce any competent evidence establishing the true character of this supposed separation. A separation between a husband and wife is an abnormal state, continuous in character, and, on sound principle as well as authority, the declarations of either of the two parties during the existence of said abnormal state characterizing the said state are admissible as original testimony in the nature of res gestæ declarations accompanying the continuous act and state of separation. It has always been held that the wife's declarations upon leaving him and separating herself from her husband are admissible as res gestæ accompanying the act of separation. McGowen v. MeGowen, 52 Tex. 657. The state of separation being continuous in character, under the same rule the declarations of either party during the existence of said continuous state or act should be admitted as res gestæ of said act or state and as characterizing same. See Edgell v. Francis, 66 Mich. 303, 33 N. W. 501. See, also, Jones on Evidence (2d Ed.) § 347, discussing the time through which declarations may be regarded as res gestæ declarations, and calling attention to the riot cases and other cases of like character, involving continuous transactions. "We submit, therefore, that, since the state contended in this case that the separation between husband and wife was unfriendly, the declarations of either during the existence of such state of separation characterizing this state were admissible upon the principles just discussed. "Many authorities might be referred to to establish the correctness of our views last expressed. We will refer, however, to only a few of them. "In Postens v. Postens, 3 Watts & S. (Pa.) 127, it was held that, where the relations existing between two parties is in issue and the question as to whether it is that of landlord and tenant or master and servant, the declarations of either relating to the matter and made during the time in question are competent evidence as a part of the res gestæ. We quote "The relations of the parties being of a doubtful interpretation, the character in which they really stood may be proved by the declarations of either made at the time as to the relations ex-, tit v. State, supra; and other authorities reisting between them.' Applying this rule it is ferred to under the first proposition. undoubtedly true that the declarations of either Mr. or Mrs. Brown during the time of their separation characterizing the state of their relations were admissible. There cannot be the slightest doubt with reference to this proposition. "Again it was held in Jewell's Lessee v. Jewell, 1 How. 219, 232, 11 L. Ed. 108, that, where the issue was whether a man and woman who had cohabited for several years and had several children and then separated by agreement, were legally married and their acts and declarations during the time of cohabitation had been shown, a notice appearing in a newspaper a short while after the separation, signed with the name of the husband, warning all persons against giving credit to the woman on his account, was held admissible as a part of the res gestæ of the act of separation and previous cohabitation. "In Badger v. Badger, 88 N. Y. 546, 42 Am. Rep. 263, it was held that, where the question in issue was whether a lawful marriage existed between two persons who lived as husband and wife, a letter in the alleged husband's handwriting and signed by the woman alone as his wife was admissible as a part of the res gestæ. "In Burns v. Smith, 21 Mont. 251, 53 Pac. 742, 69 Am. St. Rep. 653, in an action for the specific performance of a contract alleged to have been made by defendant's intestate, to give a child's share of his estate to one he received into his family and treated as an adopted child, the declarations of the deceased as to the relations between himself and such person were held admissible as a part of the res gestæ, on the ground that the res gestæ extended over the entire period of years between the time of the alleged contract and the death of the deceased. "We, therefore, submit that the declarations of Mrs. Brown made during the period of the separation between herself and husband were admissible as res gestæ of the act or state of separation and as characterizing the same. This question is not discussed in the opinion of the court, but nevertheless we feel certain that under sound principle as well as precedent her declarations should have been admitted upon this ground. "(4) There is another ground upon which the testimony of the witness Minnie Thomas was admissible, in this: The state had been allowed to prove, not only the declarations and conduct of defendant illustrating or evidencing his lack of affection for his wife, but also, in this connection, had introduced her own declarations and conduct illustrating and evidencing her lack of affection for him. For instance, her declarations made in his presence, evidencing their disagreements and bad state of relation generally, had been admitted. Various conversations between them, as detailed by her in his presence to other witnesses, bad been placed before the jury. This had been proven by the testimony of Clint Brown, Viola Wilson, and various other witnesses. These declarations of the deceased, made in the presence of defendant, as testified to by various witnesses, evidenced not only a lack of affection for her by defendant, but also recited a course of bad treatment and disagreements on his part. Now, in this state of the record, the declarations of the deceased indicating that the defendant did not love her, having been introduced on behalf of the state, her declarations made to other persons to a contrary state of facts were admissible. In other words, the state of the record is this: The wife, in the presence of the husband, and in the hearing of various witnesses, recites their previous quarrels and disagreements and his course of bad treatment toward her. The court admitted these declarations made by her, because they were made in his presence. Defendant then seeks to show by the witness Minnie Thomas that the deceased had made declarations to her contradictory of the state of facts introduced by the state. It is therefore clear upon elementary principles that the testimony of Minnie Thomas that the deceased had made declarations to her contradictory of the state of facts introduced by the state should have been admitted on this theory. The deceased stated to Minnie Thomas that she and her husband got along well, the only trouble between them being with reference to their children, and that defendant supported her and took care of her and came to see her, and that she loved him and he loved her. This declaration contradicted materially the declarations of deceased made to other witnesses, introduced by the state. They were therefore, admissible. "(3) And, again, upon another ground that may be regarded as distinct, the testimony referred to of the witness Minnie Thomas should have been admitted. The state did not content itself with merely proving the unfriendly "There is another matter with reference to state of defendant's mind toward the deceased. the exclusion of certain testimony that we subIts testimony also tended to show that both mit clearly presents reversible error, and we parties were in an unfriendly state of mind will briefly discuss it. Defendant's bill of exeach with reference to the other. In other ception No. 22 complains of the exclusion of words, the state sought to show and its testi- the testimony of the witness Mrs. Sarah Drake. mony tended to show a mutual state of unIn that bill he sought to prove his own decfriendliness and lack of affection. For in- larations made to Mrs. Drake on Thursday bestance, this was shown by proof that they had fore the tragedy on Saturday, said declarations quarreled, had lived apart, and had separated evidencing an affection for his wife. It is unas the result of disagreements, etc. It was necessary here to copy this bill of exception. therefore, we submit, permissible for defendant It is referred to in the opinion of the majority to introduce the testimony referred to of the of the court. It shows that Mrs. Drake and witness Minnie Thomas to prove the state of defendant had a conversation with reference mind of the deceased in rebuttal of the con- to deceased driving a certain horse owned by tention of the state and as destructive of the defendant. It appears that Mrs. Drake's husweight to be attached to the theory of the band and defendant had been talking about tradstate by the jury. Clearly, if this evidence had ing horses and, in the conversation, Mrs. Drake been admitted and, based on it, the jury had expressed the belief that a certain cream-colbelieved that, during this separation, the de- ored horse owned by defendant was the pretticeased loved defendant and was being supported est horse he owned, but that, if she was the by him, this would, or at least might have deceased, she would be afraid to drive it becaused the jury to disbelieve the theory of the cause it was so cranky. Defendant replied: state that defendant, during the period of sep- "There is no danger on earth in it, but that one aration, was lacking in affection for his wife. out there she wants to drive it, and I won't The contention of the state that defendant did let her and she gets sort of hot about it somenot love his wife was, under the record, closely times, but she'll get over it, and I know if I coupled with its contention that she did not would let her drive it it would kill her.' The love him. Hence testimony tending to show witness testified that the defendant stated that her love for him inferentially tended to show he would not let the deceased drive the horse his love for her. Leabo v. State, supra; Pet- on account of the fact that he was afraid that are collated by him under that section, illustrating the admissibility of such declarations. The cases of State v. Leabo, 84 Mo. 168, 54 Am. Rep. 91, State v. Pettit, supra, and Early v. State, all involve declarations directly asserting the existence of a given emotion. In most of these cases, the declarations were held to be admissible upon the theory that they were in rebuttal of an opposite contention. It was admissible on that ground. But she would be injured and killed. This conversation occurred only two days before the homicide. Now, the state contended that the defendant had no affection for his wife, desired to get rid of her, and that they had been getting along very badly. Various testimony was introduced by the state tending to support this theory. It was therefore material and relevant for the defendant to introduce any competent testimony disproving this contention. The best evidence of the state of mind or af-independently of this ground, and without reffection of any person at any given time, as we erence to the doctrine laid down in the cases have shown, is his acts or declarations evi- just referred to and discussed (Wigmore, § dencing such state. This is held by all the au- 1730), the conversation of defendant with Mrs. thorities. In this connection, it is wholly im- Drake was admissible under the rule discussed material that this declaration of defendant ev- by that writer in section 1790 of his work. We idenced affection for his wife instead of a lack will not quote from the section at length, but of affection for her. The objection that it is the following correctly states the rule: "The self-serving is not tenable, and is not supported condition of a speaker's mind as to knowledge, by any authority, but is contrary to all. All belief, rationality, emotion, or the like, may be the authorities hold that, when declarations are evidenced by his utterances either used testioffered upon the theory that they evidence amonially as assertions to be believed or used state of mind or affection, the objection that circumstantially as affording indirect inferthey are self-serving cannot be sustained, be- ences.' cause they are not regarded as ordinary dec- "The conversation of Mrs. Drake was admislarations which may be classified as disserving sible as coming within the class last mentioned, or self-serving. They are admissible as original viz., as a declaration to be 'used circumstanevidence of the state of mind of the declarant, tially as affording indirect inferences.' and the mere fact that they are favorable to fendant was unwilling for his wife to ride a the declarant is wholly immaterial. For a dangerous horse because he was afraid she court to hold that the defendant may not in- would be hurt, this indirectly indicates affectroduce his own declarations illustrative of a tion for her, and the declaration was admissible friendly state of mind towards the deceased is under this rule. Mr. Wigmore says, with refin practical effect to hold that he cannot es- erence to such evidence: 'It is worth while to tablish that fact by any means whatever. emphasize the legitimacy of this circumstantial This follows for the simple reason that the best, aspect of such evidence because it incurs the the most logically persuasive, and in fact the risk of being ignored through the judicial dismost reliable evidence of a state of mind is the position in part to account for it by the unact or declaration of the party at the time of meaning shibboleth of res gestæ (post section the alleged state. See Wigmore on Evidence, 1796), or by the exception for statements of $1732; the same writer, section 1790. That a mental condition (ante section 1715). The the objection that these declarations are self- evidence is circumstantial, not testimonial, and serving is not valid, see Wharton's work on it is therefore not obnoxious to the hearsay rule, Criminal Evidence, § 693, last edition; also nor needs for its admission any exception to Wigmore, 1790. that rule. No doubt in given instances it may be difficult to distinguish a genuine circumstantial use of utterances for this purpose, and this difficulty has generally been considered (ante section 285); but isolated instances of difficulty need not prevent us from recognizing the plain principle in its ordinary unquestioned uses.' "And again, in addition to the above view of this testimony of Mrs. Sarah Drake, we believe that it was admissible as circumstantially and indirectly indicating the state of the defendant's mind and affections with reference to his wife. As we have said, this conversation occurred on Thursday. The deceased was killed on Saturday. There is not the slightest suggestion that this declaration of defendant was manufactured or prepared. The declaration does not involve or present a mere bare assertion of the fact of existing love or friendship. A declaration of that class, made so near the time of the homicide, might, with some show of logic and reason, be regarded as suspicious. A mere conclusion or an assertion of the defendant of his state of mind and affection towards his wife is not involved. What makes this declaration of peculiar value, and this is regarded by the law as important (Wigmore, § 1790), is that it indirectly and circumstantially indicates affection. If the defendant had merely asserted as a fact that he loved his wife, this declaration, made so near the homicide, might, as we have said, with some show of reason, be rejected as probably manufactured or self-serving. As to this, however, under the peculiar state of the record presented in this case, we do not deem it necessary to determine. Under the Early Case and the other authorities we have cited it was admissible even when viewed from this standpoint. Wigmore, 1730. But here is a declaration, apparently spontaneous in nature, not involving any bare assertion of affection, but indirectly and by clear inference indicating a friendly and affectionate state of mind towards his wife. It is true, as shown by Mr. Wigmore, in section 1730 of his work, that a declaration directly asserting as a fact the existence of a given emotion may be admitted. Many cases If de "Under the doctrine thus clearly stated, the conversation of the defendant with Mrs. Sarah Drake, expressing his unwillingness that his wife should ride the dangerous horse, said conversation occurring only two days before the homicide, was clearly admissible as furnishing to the jury a basis upon which it might have based an indirect inference that the contention of the state that defendant did not love his wife was unfounded. Moreover, there can be no doubt that this statement of the rule is correct. In fact, it is now generally conceded by the bar and bench that Mr. Wigmore, in his monumental work on Evidence, has produced one of the greatest, if not the very greatest, modern commentary on any legal subject. The entire work is characterized, not only by the profoundest learning, but also by the most discriminative analysis. Of the many works on Evidence, Mr. Wigmore's work stands unrivaled in its distinc tive superiority. This being true, we are glad to cite the work in support of our position with reference to the admissibility of this testimony. "In their opinion on rehearing, the majority of the court seem to concede the admissibility of this evidence and, if we interpret the opinion correctly, hold that the evidence should have been admitted. However, it is held that, notwithstanding this evidence was admissible and should have been admitted, the judgment should not be reversed on account of it being rejected. With this conclusion we are unable to agree. It is not for this court to determine the weight of the evidence. Revised C. C. P. art. 734. That responsibility rests with the clothes and he started to change his clothes and he heard her speak and say "I'm drowning," and he said it didn't excite him at all, because she had been playing that way with him all the time in the water, and he looked around and sure enough she was drowning, and he had to go in and get her out. And Sister Brown spoke and says, "You don't know how thankful I was Mr. Brown was with me, if he had not been there me and the girls might have went down there, and part of us or all of us might have got drowned."' jury. Same article. The evidence introduced "(4) We next desire to refer to defendant's bill of exceptions Nos. 12, 13, 14, and 25, all presenting in substance the same question. These bills complain of the exclusion by the trial court of the testimony of various witnesses to a conversation between defendant and deceased with reference to the swimming hole incident and with reference to the fact that defendant rescued his wife from drowning only a few days before the killing. This was sought to be proven by the testimony of the witnesses Burney Brown, E. I. Drinkard, and his wife, and also by the testimony of the defendant, and was rejected. We will not state these bills of exception in detail. It is sufficient to say that, about a week before the homicide, the deceased and defendant went down to a certain creek not far from their residence, to go in bathing. There was water in the creek about 10 feet deep. Defendant sought to show by the witness Burney Brown that that night at the supper table, after coming home, Mr. and Mrs. Brown related to the children this incident and the fact that defendant had saved her from drowning. Defendant further sought to show a conversation had between himself and Mr. and Mrs. Drinkard with reference to this drowning incident, and in which they related the incident to the Drinkards. We quote from the bill the testimony of the witness E. I. Drinkard that was offered and rejected: 'Sister Brown spoke up and says, "Do you know I like to have got drowned the other day?" and my wife spoke and says, "No, I didn't hear anything about it." "Well," she says, "I did"; and she asked them how it happened, and she said, "Me and Mr. Brown was going to town and we taken some clothes along with us and when we got to Wilis Creek we stopped and went in bathing and 1 like to have got drowned," and Brother Brown he spoke up and says, "Yes, I stayed in with her as long as I wanted to and went out on the bank and when I got out I told her about the water and pointed the direction the deep water was and told her it was too deep out there," and he went out on the bank and he stayed there until he got a notion to change his |