The opinion
SEPARATE OPINION.
) Gantt, P. J.
I concur in reversing and remanding the cause and recognize the law as stated by my learned associate; but my concurrence in the reversal is based upon the fact that it does not sufficiently appear that the deceased had expressed his belief that he was bound to die, before he stated that defendant had inflicted the blow that caused his death'. If’ the conversation with his family in regard to his •consciousness of approaching death, did in fact precede the statement as to defendant striking and biting him, then I hold it was competent. I cannot bring myself to regard it as the statement of one merely suffering from nausea caused ■ by swallowing ■tobacco. I do not think that many men would be moved to bid adieu to their loved ones forever, merely from having inadvertently swallowed tobacco juice.
That deceased’s apprehensions that his death was imminent were well founded, appears from the fact, "that in two hours he passed into a state of coma, from which he never fully emerged.
The evidence ought to be fairly obtained, but the fact that a dying declaration is made in response to ■questions does not render it inadmissible.
The objections to the leading character of the -questions by the prosecuting attorney should be avoided ■as well as ’ untimely interruptions, by defendant’s -counsel, on a retrial of the cause.