that appellant "did then and there with malice aforethought kill May Carden, a pregnant woman, by then and there unlawfully, willfully and designedly inserting and thrusting an instrument, the name and description of which is to the grand jurors unknown, into the womb and body of the said May Carden, with the intent on the part of him, the said W. B. Jackson, thereby to cause and procure the abortion and miscarriage of the said May Carden of the child wherewith she was then and there so pregnant, against the peace and dignity of the state." The record is very voluminous, having nearly five hundred pages of statement of facts. Many questions are presented for revision. As the case will be reversed on other questions, we will not discuss the alleged error of the court in overruling the application for continuance. Nor the matters presented by exception to some of the rulings of the court in regard to a colloquy between the court and counsel, in which the court imposed a fine on one of the attorneys defending. These matters will hardly occur upon another trial, and the presence of the absent witness may be secured.

1. It is shown by a bill of exceptions that W. H. Skelton was employed by appellant to represent him on the trial. That he 81 was a practicing attorney of many years' standing in Johnson county, and was the first lawyer employed by appellant to represent him; that Skelton resided at Alvarado, where appellant also resided, and had consulted with appellant more frequently in regard to his case than the other attorneys, and had a more complete and perfect knowledge of the evidence of the case than any other attorney; that in fact Skelton was appellant's leading counsel. The court was requested not to place Skelton under the rule as a witness. He was placed under the rule, sent out and kept out of the courthouse, and under the rule during the entire trial, and was instructed, as all the witnesses were, not to talk to anyone, except the attorneys in the case about the evidence, nor as to what his evidence would be, and after they had testified as to what their evidence had been. The rule was invoked. The court signs this bill with the explanation that when the witness was sworn the county attorney objected to his remaining in the courtroom, and, as the defendant had invoked the rule and as the county attorney stated he might be a material fact witness, he put him under the rule. His testimony in this case, which was referred to and made a part of this bill, shows that he accepted employment, and if an attorney accepts employment under such circumstances, then he should be excluded from the courtroom while the testimony is being

given. In this case the defendant had the assistance and counsel during his trial of the following attorneys: Poindexter and Padelford, Odell and Johnson, and John Baker. With such able counsel no injury could have resulted to the defendant in the court's excluding only one. This is practically and most literally the explanation of the trial judge. Our Bill of Rights guarantees that when the accused is placed upon his trial, he shall have the right to be heard by his counsel and himself, either or both. The defense of an accused by counsel is a very valuable right, and one which is guaranteed him by our constitution and laws, and whenever the relation of client and attorney exists, the accused has the guaranteed right of having counsel represent him at any, all and every stage of his case while before the courts. "Usually the legal discretion of a court exercised during a trial in reference to the enforcement or relaxation of the 'rule' will not be revised by the appellate court, but this is not always the case. The prime, as well as the ultimate, object of this statute is to secure a fair hearing of the testimony, and when necessary to attain these objects and purposes, the rule should be relaxed. From the very nature of the matter there can be no fixed rule in such state of case other than a due administration of the law. It is a practice alike familiar to the courts and the profession that this rule is relaxed in regard to attorneys of the court: Brown v. State, 3 Tex. App. 294; Johnson v. State, 10 Tex. Cr. App. 571; Roach v. State, 41 Tex. 262; Sherwood v. State, 42 Tex. 498. And we do 82 not think it could be enforced as to attorneys engaged in the particular case on trial, for if such were the rule, the state could thus be deprived of a prosecuting attorney, and the defendant of his counsel, and the rule be made paramount to the code, defeat the very objects of its existence, and even infringe the Bill of Rights, wherein it is provided that the accused shall have the right to be heard by counsel, as well as by himself." This quotation is from Boatmeyer v. State, 31 Tex. Cr. 473, 20 S. W. 1102. See, also, Johnican v. State (Tex. Cr. App.), 48 S. W. 181; White's Annotated Code of Criminal Procedure, sec. 767, subd. 2, for collation of authorities. The fact that appellant may have been ably defended by other counsel does not abridge his right to have counsel of his own selection and as many as he may see proper to employ to defend him. Nor can he be deprived of the advantage of his selected counsel by placing them under the rule as witnesses. If this rule should obtain, then the state could place counsel of accused under the rule as witnesses in

behalf of the state and deprive him of such counsel as he might see proper to select or employ.

2. The dying declarations of May Carden were introduced over appellant's objection. Quite a number of reasons are urged why this ruling was error. Without going into a detailed statement, a fair summary in regard to this matter can be thus stated: Dr Turner and Dr. Self were called in as physicians and attended the deceased. When Dr. Turner was first called he administered an opiate and requested that Dr. Self be called, which was done. They met at the bedside of the deceased; they found her suffering excruciating pain and giving vent to vociferous exclamations indicating the intensity of her pain. Among other things she stated that she was going to die, that she could not stand it. She was suffering from hemorrhages from the womb, which was greatly distended, the discharged matter being quite offensive. The theory of the state was that her troubles were brought about by an abortion. Dr. Turner testified that they made a digital examination, passed their hands into the "vagina and uterus and found that the uterus was full-the mouth of the uterus was dilated open, and she had passed several pieces of membrane and blood clots and the uterus was full of retained embryonic tissue, and an awful bad odor." This embryonic tissue was evidently the foetus of a child. The opinion of this physician is pretty clear that she was not in a dying condition, but his testimony showed that she was suffering intense pain from the discharge; that the exclamation of her belief that she was dying was more the result of the pain than a real belief of death, and that he had often heard this from women who were in childbirth or under similar conditions. Dr. Self, in talking with the deceased, asked her what brought about her condition. She replied: "I am two months gone and I had an abortion done." She says, "I have got to have relief." She was suffering and taking on greatly. "I says, 'Well, we have got to know 83 all about this thing, and you must tell us all about it before I will take charge of the case; these are cases that a doctor dislikes to get into anyway, and we must know all about it.' They tried to keep from telling us, and we told her we would just have to know it, as to who did the operation and where it was done, and she says, 'It was done at Alvarado.' I says, 'Who did it? You had as well tell it all, because we have got to know it,' and Scott, the young man in the room with her, began to beg us not to require them to tell who it was, and I says, 'I must insist on knowing who it was before I take charge of the case,' and he says, 'Well, tell him

who it was,' and she says, 'Dr. Jackson, of course.' Q. (By state's counsel.) Said what, Doctor? Says, 'Tell him,' says to Scott, says, "Why, tell him who it was; it was Dr. Jackson, of course.' I asked her how it was done, and she said he used instruments and tried to take it away. Well, she made the statement several times that she could not stand it; that it was going to kill her. She could not stand the pain? Yes, sir; I think she made the statement-I am quite sure she did, that she was going to die; that she could not stand the pain; that the pain was killing her and that she wanted to be relieved." This witness says that she was crying out on account of the excruciating pain she was suffering when he and Dr. Turner were questioning her, and that she wanted him to do something for her; that she was wanting relief all the time. "Q. And you declined to do anything for her and told her you must have this information as to what brought about this condition before you would take the case and do anything for her, didn't you? A. Yes, sir. Q. Now, when Scott spoke up, what did he say? A. Scott says, 'Gentlemen, I don't want to tell who it was; I would rather not say that.' Q. And you would not have anything to do with it until you found out? A. We left that impression on her, I am quite sure. Q. You would not do anything for her until she gave you the facts? A. Yes, sir." This witness said he did not think she was dying at the time, and he further said that her cries were caused by the pain she was suffering rather than from any calm, deliberate belief that death was impending. This further question was asked Dr. Self: "Q. Would you undertake to say that she was conscious of approaching death at the time you were there? A. Well, no, I really don't think she was." He stated that she also said in this conversation that as soon as she got well enough she intended to marry Scott. Without going into any details in regard to Scott's connection with the matter, the evidence shows that he was her seducer and lover and author of her shame.

Now, the question is urged by appellant that this dying statement of the girl was not admissible; that it was made under duress and was not voluntary. The statute requires that a dying declaration, to be admissible, must be freely and voluntarily made, and if this predicate does not show that it was voluntarily made, then the statements 84 of the girl should have been rejected. Under the above statement, it is without contradiction that the girl was suffering acutely, giving loud and vociferous exclamations of pain and expressing

the opinion that she was going to die. Under this condition of things, with her mind influenced in this way and by her pain, the physicians informed her that they would not do anything for her unless she told them about how her trouble came about, and who performed the operation. So we have the girl laboring under the firm impression that she was going to die, and the physicians refusing to give her any relief unless she told them the secret of her ailment. It would hardly be a correct conclusion not to say that this testimony raised a serious question as to whether, under these circumstances, she voluntarily made the statements, and in fact there is evidence from these doctors that she would not tell, and a protest from Scott, who was sitting by, and apparently, if not in fact, controlling her, that they did not want to tell it. However, finally, in order to obtain relief from her suffering and apprehension, and as an inducement to the doctors to treat and relieve her pain, she turned to Scott, who told her to tell them what she told him. She then replied, "It was Dr. Jackson, of course. Under the facts stated and in her then condition, it certainly was a most powerful incentive and weight upon her mind as an inducement, if not a coercion, to make the statement she did make, especially in view of the fact that up to that time she and her lover both had insisted on not making the statement. But certainly, in view of all the evidence the testimony raised the issue that the dying declaration was not voluntary, but by over-persuasion, or duress, for that the evidence of the two physicians show they had declined to treat or relieve her of what she thought was her dying condition, unless she gave the name of the party who had operated upon her. This sufficiently presents the question so as to require the court to submit the issue to the jury as to the condition of her mind at the time, and if they should find that she was under duress, or over-persuasion, or not under a sense of impending death, then they should disregard her statement, in arriving at a verdict. The authorities are numerous to the effect that where there is an issue in regard to the proper predicate for the admission of dying declarations, or confessions, the court should submit that as an issue of fact to be determined by the jury, and if found favorable to the appellant, to disregard such declarations or confessions: Brown v. State, not yet reported.

3. The state introduced evidence showing that appellant went from his home in Alvarado to the city of Cleburne on the morning of the day of the alleged operation upon deceased. That while in Cleburne he visited the home of deceased, who