In addition to the statement of witnesses concerning the dying declarations of the deceased, there was strong evidence that the prisoner shot and killed the deceased. His Honor, however, in the course of the trial received a certain piece of evidence, offered by the State, which was so clearly incompetent, and which may have been harmful to the prisoner, that we are on that account compelled to order a new trial.
Robert Teachey, the father of the prisoner, testified for *657tbe defense that bis son, tbe prisoner, was at bis borne at 7 o’clock on tbe nigbt of tbe shooting, and that be (tbe father) went to bed early and did not see tbe prisoner until next morning. Tbe deceased was .shot about 9 o’clock at nigbt. AY. D. Teachey, a witness for tbe State, was allowed to testify, over tbe prisoner’s objection, that, on Sunday after tbe shooting, be, at tbe bouse of Robert Teachey, was asked by Robert if be (AY. D.) bad beard anybody say at what time tbe shooting took place, and that be answered, “About 9 o’clock,” and that in reply Robert said: “I might as well give tbe case up, as I have no grounds to fight upon. I cannot account for Dan after 7 o’clock.”' Joe Bostick testified that be beard Robert Teachey say that he could not account for Dan after 7 o’clock. At tbe close of bis testimony tbe jury were instructed “That tbe evidence as to what Bob Teachey (who is tbe same as R. Teachey) said was not to be considered, unless they found from tbe evidence of said Teachey that be fixed Dan Teachey at home that nigbt after 7 o’clock, and be (Bob Teachey) was thereby contradicted.” Assuming that this instruction to tbe jury bad reference to the testimony of AY. D. Teachey, as well as to that of Bos-tick, it could not have tbe effect of curing tbe error in tbe admission of tbe testimony of AY. D. Teachey. In no sense could tbe testimony of AY. D. Teachey be considered as contradictory of any statement made by Robert Teachey as to tbe whereabouts of Dan on tbe nigbt of tbe shooting. Tbe despair of tbe father, Robert, in successfully defending bis son against the charge of murder bad no connection with any statement made by tbe father as to tbe time when be saw tbe son last on the nigbt of tbe shooting. It was entirely independent of all reference as to tbe time of tbe shooting, and was but tbe individual opinion of a distressed parent about tbe difficulties surrounding bis son’s condition. It was not *658Contradictory of any statement made by the witness, and was not connected with any fact concerning the alleged homicide.
New trial.