The appellant makes many assignments of error, both to the rulings upon the evidence and to the charge of the court, but under the view we take of the case it becomes necessary to discuss but one group of these assignments, since we hold that they entitle the defendant to a new trial.
There was evidence tending to show that the deceased knew well the defendant, that they had often met and conversed, and that the defendant for many months worked in a filling station close by the laundry of the deceased, and that they had each often been in the place of business of the other.
The State’s witness, Dr. P. Y. Greene, testified that he saw the deceased immediately after he was brought to the hospital a short time after he was shot about 10:20 o’clock p.m., on 20 April, 1935, and that he was conscious and able to talk, but was rapidly going into “what we term shock,” and that his body was becoming cold and his pulse rapid. On cross-examination, Dr. Greene was asked: “You say he made a statement to you?” and upon objection by the State the court refused to permit an answer, to which refusal the defendant reserved an exception. In the absence of the jury the witness answered the foregoing question as follows: “Officer Bennett asked me if I thought the man was likely *3to die, and I replied, ‘Yes,’ and lie asked me if I would ask if be bad any idea wbo sbot bim, and I asked Mr. Teague in tbe presence of tbe officer, and be said be did not know, and I asked bim if it was a white man or a colored man, and be said it was a white man. ... I asked bim if be knew wbo it was, and be said be bad no idea.”
Another State’s witness, Bruce Poole, captain of city detectives, on cross-examination, was asked tbe following question: “Did Mr. Teague at that time make a statement as to tbe identity of tbe man wbo sbot bim?” and upon objection by tbe State tbe court refused to permit an answer, to which refusal tbe defendant reserved an exception. In tbe absence of tbe jury tbe witness answered tbe question as follows: “I asked Mr. Teague wbo sbot bim and be told me be didn’t feel like talking — that be felt like be was fading out, and I asked bim would be answer a question, and be said be would, and I asked bim if it was a white man or a colored man, and be said, ‘A white man,’ and I asked bim bow be was dressed, and be said, ‘About like you,’ and I said, ‘What size was be ?’ and be said, ‘About like you,’ and be looked kinder like be was fading like and I waited and thought I would talk to bim some more when be got to feeling better and thought I would wait around, and I stayed until five o’clock in tbe morning to try to get a statement from bim, and that is all, I. ever got.”
“In Greenleaf Ev., sec. 158 (16 Ed.), it is said that while it is essential that tbe deceased was under tbe sense of impending death, it is not necessary that be should so state at tbe time. It is enough, if it satisfactorily appears, in any mode, that tbe declarations were made under that sanction; whether it be directly proved by tbe express language of tbe declarant or be inferred from bis evident danger, or tbe opinion of tbe medical or other attendants, stated to bim, or from bis conduct or tbe circumstances in tbe ease, all of which are resorted to in- order to ascertain tbe state of tbe declarant’s mind.” S. v. Watkins, 159 N. C., 480 (484). “Tbe rule for tbe admission of such testimony is thus laid down in Taylor on Evidence, sec. 648: 1. At tbe time they (tbe dying declarations) were made, tbe declarant should have been in actual danger of death, (2) that be should have a full apprehension of bis danger, and (3) that death should have ensued.” S. v. Mills, 91 N. C., 581 (594).
“Dying declarations are admissible on a trial for murder as to tbe fact of tbe homicide, and tbe person by whom it was committed in favor of tbe defendant as well as against bim.” S. v. Blackwell, 193 N. C., 313; Mattox v. U. S., 146 U. S., 140, 36 Law Ed., 917; Wigmore on Evidence (2d Ed.), Vol. 3, par. 1452, p. 187.
We are of tbe opinion that tbe testimony of tbe witness Greene and of tbe witness Poole elicited by tbe answers to tbe questions to which objections were sustained and exceptions reserved, was competent under *4the authorities cited, and we are further of the opinion that such testimony was material to the issue, since it appears that the defendant was well known to the deceased and that the deceased had opportunity to and did see his assailant and recognized that he was a white man, and recognized his dress and build, but did not know him or have any idea who his assailant was. This evidence was material as tending to show that the assailant was someone else than the' defendant, and we hold that its exclusion was prejudicial error, and entitles the defendant to a new trial; and it is so ordered.
New trial.
Devin, J., took no part in the consideration or decision of this case.