The opinion
ON MOTION FOR REHEARING.
LATTIMORE, Judge.
Practically appellant’s only complaint of our original opinion is that we did not hold the matters set up in bill of exceptions No. 4 to show reversible error, and the particular insistence is that appellant s wife should have been permitted to testify that witness Robinson told her in appellant’s presence that deceased “had threatened the life of the defendant”. The bill is full of many inconsistent statements and ordinarily consideration thereof would have been refused because of the manner of the preparation of the bill, but in death penalty cases we try to extend the rules as much as possible and consider complaints which we otherwise would not. It is perfectly plain that to say a statement was made in the presence of another, is not sufficient unless it go further and either in terms or by explanatory averment show that such statement was heard or reasonably should have been heard, by such other. Appellant took the witness stand in his own behalf, and while he testified to threats made by deceased and to communication thereof by other people, he nowhere claimed to have heard witness Robinson state to appellant’s wife in his presence, that he had heard' deceased threaten to take his, appellant’s life.
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Even if it be then conceded that the trial court should have permitted appellant’s wife to make the statement referred to, the rejection of which is complained of, her statement of same could in nowise affect appellant’s rights in the matter of the homicide, and would seem so little likely of having affected the verdict as that we are forced to-conclude its rejection of no possible harm to appellant. If she had testified that Robinson stated to her in appellant's presence that he had heard deceased threaten appellant’s life, unless said statement was heard by appellant or was brought home to him in some way, it could have added nothing to appellant’s right of self-defense. We have said this much for fear that we might be understood as having meant in our original opinion that a witness could not give testimony of a statement made in the presence and hearing of the accused which if heard by him and acted upon, or which might have been considered as influencing the subsequent actions of the deceased, might thus have become material and admissible.
Believing that in the matter referred to, no possible harm could have resulted to appellant, and that the record wholly fails to show that the remark was heard by him, or that he relied on same, or believed it true, or that it influenced him in any way in committing the homicide, the motion for rehearing will be overruled.
Overruled.