All of tbe evidence tends to show that tbe proximate cause of tbe death of deceased was a wound in bis lower back which broke two ribs, and that be was bruised about tbe face and bead; that tbe wound in tbe back “bruised itself through tbe tissue,” and tbe wound was filled witb dirty grease. Tbe doctor testified that tbe wound in tbe back was tbe primary cause of death and that internal hemorrhage and traumatic pneumonia which developed were tbe immediate cause.
Tbe court below admitted a statement of tbe deceased that tbe train bad not bit him, made at tbe time be was found at tbe railroad track. Thereafter tbe court withdrew this testimony and instructed tbe jury that they should eliminate it from their minds entirely and not consider it at all. Tbe defendant moved that a juror be withdrawn and a mis*320trial ordered. The motion was denied. In view of the full instruction of the court to the jury in withdrawing this testimony, we can see no error in its refusal to allow the motion for a new trial.
The court likewise admitted evidence of a statement by the deceased, made at the hospital, that he would be a dead man in thirty minutes and that the train did not strike him. The State’s evidence tends to show that this statement was made in the emergency room of the hospital; that the deceased later repeated the statement on several occasions; and that he thereafter told his sister that he had been beaten about the head with a blackjack. Except for this latter statement the deceased did not undertake to tell how he received the injuries from which he was suffering. The defendant assigns as error admission of the statements of the deceased, and this constitutes one of the exceptions principally relied upon.
8iacy, G. J., speaking for the Court, and citing numerous authorities, states the rule governing admissibility of dying declarations in S. v. Beal, 199 N. C., at page 296, as follows: “The general rule is, that, in prosecutions for homicide, declarations of the deceased, made while sane, when in extremis or in articulo mortis, and under the solemn conviction of approaching dissolution, concerning the killing or facts and circumstances which go to make up the res gestee of the act, are admissible in evidence, provided the deceased, if living and offered as a witness in the 'case, would be competent to testify to the matters contained in the declarations.” He further says: “We have a number of decisions to the effect that dying declarations are admissible in cases of homicide when they relate to the act of killing, or to the circumstance so immediately attendant thereon as to constitute a part of the res gestee, and appear to have been made by the victim in the present anticipation of death, which ensues.” It is the prevailing rule which has not been departed from by any court, so far as we know, that the alleged dying declaration, to be admissible, must “relate to the act of killing, or to the circumstances so immediately attendant thereon as to constitute a part of the res gesteeIn considering this rule, it may be conceded that if an affirmative statement of the deceased as to how he received the wound from which he died is admissible, then a negative statement would likewise be admissible. In either event, however, the statement must relate to or constitute a part of the res gestee.
There is a total absence of evidence in the record tending to show that any train struck the deceased. The evidence offered by the defendant as to the schedule of trains passing over the track near which the deceased was found was wholly irrelevant to the issue being tried and was immaterial and incompetent. However, the State “took the bait” and proceeded to offer other evidence about the makeup or construction of *321trains and the topography of the land near the crossing. It thus departed from the real issue and engaged with the defendant in chasing rabbits on an issue entirely foreign to the trial, and aided the defendant in constructing a bogey-man that might persuade the jury to conjecture and surmise that the deceased had been struck by a passing train. All of this evidence was entirely foreign to the question being tried.
Even if it be conceded that if the defendant’s testimony had tended to show that the difficulty between the deceased and the defendant occurred at or near the railroad crossing the statements of the deceased, when a proper foundation was laid, would be competent in rebuttal to negative competent evidence that the deceased had been struck by a train, such is not the case here. The State’s evidence tends to show, and it contended, that the fight occurred at the filling station some considerable distance from the railroad, and that the fatal wound was there inflicted. The evidence offered by the defendant as to the schedule of trains, as heretofore stated, was irrelevant and immaterial. In view of this fact the statements of the deceased, conceding that the foundation was properly laid, in no wise related to the res gestee and was likewise irrelevant and inadmissible. In this connection, we may note that while the defendant excepted to the evidence of the sister of the deceased to the effect that the deceased told her that he was beat about the head with a blackjack, the defendant did not bring forward this exception, and any question as to its relevancy and materiality is not before us.
From a careful examination of the record we are convinced that if the statements of the deceased were in any event competent, they were competent only in rebuttal, and for the reason that the defendant had undertaken to shift the scene of the alleged controversy, and thus make material what occurred at the place where the deceased was struck. As there is no competent evidence tending to show that there was any conflict between the defendant and the deceased at or near the railroad, and the evidence in respect to trains fails to show that the deceased was struck by a train, and any such conclusion is a mere surmise or conjecture, the statements of the deceased, which are the subject of one of the defendant’s exceptive assignments of error, were wholly unrelated to the res gestee and were inadmissible in evidence.
The State was not required to negative the mere possibility that the deceased received his fatal wound in some manner other than at the hands of the defendant. The statement of the deceased could have no substantial bearing upon the question of the guilt or innocence of the defendant. Therefore, the admission of this evidence, though erroneous, was harmless.
In the trial below we find
No error.