No. 14,883.

#### Archibald *v.*The State.

Instructions to *Jury.*— Copies *of.*— Contained *in Motion for New Trial.*— • *Record.*— Supreme *Qourl.*— Where copies of what purport to be the instructions are copied into the motion for a new trial, and these copies, as a part of that motion, are copied into the record, they will not be regarded as instructions given by the court.

*Evidence.*— Dying Declarations.— *Res Gestee.*— Declarations in an *antemortem*statement which relate to the *res gestee,*made while the person is suffering from a mortal wound, without the hope of recovery, are admissible in evidence.

*Same.*— Ante-Mortem Statement.— *Objection to as Entirety.*— Where such statement is objected to as an entirety the objection will fail if any part of . the statement is competent evidence.

.From the Henry Circuit Court.

*J. Brown*and *W. A. Brown,*for appellant.

*L. T. Miohener,*Attorney General, and *J. H. Gillett,*for-the State.

Berkshire, J.

The appellant was indicted for the crime of murder in the first degree, tried and convicted of manslaughter, and sentenced to the female reformatory for a term of five years. The errors assigned are:

> *“*1. The court erred in overruling appellant’s motion to quash the indictment.

> *“*2. The court erred in overruling appellant’s motion for a new trial.”

Counsel for the appellant do not insist upon the first alleged error,, and therefore waive it.

There are quite a number of causes alleged in the motion for a new trial, but the argument is limited to three of them, which is a waiver as to the others.

Two of the reasons discussed relate to the giving and refusal of instructions.

*123The instructions are not copied into the record, and are, therefore, not before us for consideration.

Copies of what purport to be the instructions were copied into the motion for a new trial, and these copies, as a part of that motion, are copied into the record. Ve can not regard these copies as the instructions that were given by the court.

The only remaining question is as to the ruling of the court in admitting in evidence the *ante-mortem*statement of the deceased.

The declarations, with one or two exceptions, related to the *res gestae,*and were competent testimony, if the circumstances under which they were made were such as to give to them the character of dying declarations.

The evidence discloses that when the statement was written and signed, the deceased was suffering from a gunshot wound which was mortal, and from the effect of which he died in a few hours after he signed the statement; and that at the time he made the declarations it was the solemn .con-viction of his mind he could live but a very short time.

There is nothing in the circumstances proven to. indicate that the deceased had even a lingering hope of recovery.

We are of the opinion that the declarations contained in the statement which related to the *res gestae*were competent. *Morgan*v. *State,*31 Ind. 193; *Binns*v. *State,*46 Ind. 311; *Montgomery*v. *State,*80 Ind. 338 ; *Wall*v. *State,*51 Ind. 453; *Jones*v. *State,*71 Ind. 66. The statement was objected to as an entirety.

If it had been limited to such declarations as did not relate to the *res gestae,*and the court had overruled the objection and admitted the statement as a whole, then a different question would be presented.

The question is much the same as where an objection is made to the entire evidence of a witness contained in a deposition where a part of the testimony is competent.

It would be error to suppress the entire deposition, and *124the court would not be required to look through the deposition to find the incompetent testimony.

Filed Feb. 8, 1890.

The court committed no error in admitting the *ante-mortem,*statement.

We find no error in the record.

Judgment affirmed.