1. For the purpose of showing a motive on the part of the defendant to kill the deceased, it was not error to admit in evidence the affidavit made by deceased a short time before her death, charging the defendant with a violation of law, which affidavit was made for the purpose of having said defendant arrested and tried for said violation, and was pending at the time of deceased’s death. (Taylor v. The State, 14 Texas Ct. App., 340; Rucker v. The State, 7 Texas Ct. App., 549.)

2. It was error to permit the witness Hannah Blocker to state what .the deceased told her concerning Henry Washington’s beating her nearly to death. This was hearsay, and was no part of the res gestae, and in no way connected with or bearing upon the issue of defendant’s' guilt. It does not appear that what deceased said was in explanation of her then sickness, and was a part of the res gestae of such sickness. (Hammel v. The State, 14 Texas Ct. App., 326.)

3. It is not claimed by appellant’s counsel that the court erred in its charge to the jury, or in refusing special instructions requested by the defendant. We have, however, examined the charge of the court and the special instructions which were refused, and we are unable to see that any error has been committed in giving to the jury the law of the case. We think the charge given was correct, and contained all the law applicable to the evidence, and this seems to be conceded by appellant’s counsel, as they have not directed the attention of this court to any supposed defect in the same.

4. Appellant’s counsel rely for a reversal of the judgment mainly upon the ground that the verdict of the jury is not supported by the evidence. We have given to the statement of facts a most careful consideration, and we are clearly of the opinion that the evidence is insufficient to support the conviction. We will not recite the evidence, as the Reporter will collate and publish the same in connection with this opinion. It is not shown by the evidence certainly, and beyond á reasonable doubt, that deceased came to her death by the criminal act or agency of any one. There were no marks of violence upon her person, except those produced by the fire, and an old wound on the top of the head, which was shown to have been made some time prior to her death. There were no indication's in the house of a struggle having taken place — in fact, no signs or evidences whatever that violence had been used upon the deceased. Deceased made no outcry that was heard, and no un*355usual noise was heard at or about the house at the time of her death; and yet there were several persons within hearing of the place of her death at the time. She was a woman who weighed one hundred and thirty or one hundred and forty pounds, and was apparently in good health. It is not reasonable to conclude that she could have been murdered without a struggle or an outcry on her part, and without the least evidence of violence being left upon her person.

It was the theory of the prosecution that kerosene oil was thrown upon her, and that she was then thrown into the fire and burned to death. While it is possible that this theory is correct, it is not established by the evidence, but, on the contrary, to our minds the evidence renders it improbable that her death was thus produced. There was but little fire in the fire place, but one chunk of fire, as some of the witnesses testify; there were no indications in or about the fire place of a struggle; a pot and a skillet, containing food which was being cooked, were in the fire place, and were undisturbed. Ho kerosene oil was found about the house, though some of the witnesses testified that they smelled it, and one witness said he saw some on the floor. Other witnesses, however, testified that they examined closely and saw no oil upon the floor, and could smell none' about the body. But, it is said, perhaps she was killed, or nearly killed, and then saturated with oil and placed in the fire. If such had been the case, it is reasonable to suppose that if external violence sufficient to kill or render her helpless had been used, some evidence of such violence would have been found upon her dead body, and the testimony is conclusive that no such evidences were found then, nor subsequently, when the dead body was exhumed and particularly examined by an expert for the purpose of discovering indications of violence.

On the other hand, it appears from the evidence of a physician who testified in the case, that there are various diseases, and some of which are not infrequent, that produce death or unconsciousness suddenly, without any premonition. Among these he mentions heatstroke, catalepsy, epilepsy, hemiplegia, asphyxia, aneurism of the heart or brain. Would it not be as reasonable to suppose that the deceased was suddenly stricken down by some one of these diseases, and fell upon the fire, as to conclude from the evidence that she was murdered by the defendant or any other person? Would not this supposition, that her death was thus naturally produced, account for the absence *356of all external evidences of violence inflicted upon her? And is not this theory perfectly consistent with the innocence of the defendant? Is there anything unreasonable in such a theory? In connection with this hypothesis, it is worthy of notice and consideration that, in August previous to the death of deceased in November, while she was returning home from church, she suddenly fell in the road, helpless and unconscious, and in this condition was conveyed to a house near by, where she was attended to, and in a little while restored to health. This sudden attack was at the time supposed by those who witnessed it to be heatstroke, the weather at that time being very warm. Might she not on the occasion of her death have been again heatstricken? Her death occurred near midday, and while she was apparently engaged in cooking over the fire, and the physician who testified in the case informs us that fire, as well as the heat of the sun, may produce heatstroke.

Giving to the evidence before us full credit and weight, admitting as true every portion of the State’s evidence, we think it falls far short of establishing with that degree of certainty which the law demands that the deceased came to her death by violence inflicted upon her by another. And it further falls far short of proving that if such violence was inflicted it was inflicted by the act or agency of the defendant.' In short, we are of the opinion that the evidence, instead of clearly and satisfactorily establishing the corpus delicti, leaves it in great doubt and uncertainty, and is altogether too uncertain and inconclusive to warrant this conviction. (Lovelady v. The State, 14 Texas Ct. App., 545; Walker v. The State, Id., 609.)

We think the court, erred in refusing to grant the defendant’s motion for a new trial, and because of such error the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered May 28, 1884.