#### STATE v. JOHN JONES.

(Filed 21 May, 1930.)

1. Criminal Law G d — Testimony of deaf mute in this case held competent.

Upon the trial for a homicide, testimony of a deaf mute that he saw the defendant take the arm of the deceased “and make like to cut him” is competent with other testimony to like effect and as substantive evidence.

2. Criminal Law L e — Question calling for hearsay evidence which is not answered will not he held for reversible error.

Where a question asked by the solicitor of a physician calls for hearsay evidence, it will not be held for reversible error if the question is not answered and it does not appear what the answer would have been.

Appeal by defendant from Schenclc, J., at January Term, 1930, of BuNCOmbe. No eri’or.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

W. A. Sullivan and B. R. Beynolds-for defendant.

Adams, J.

Four defendants were indicted for tbe murder of Claude Gentry. Sam Jones and W. C. Jones were discharged when tbe action as to tbem was dismissed, Ed Swan was acquitted, and Jobn Jones was convicted of manslaughter. From tbe judgment pronounced tbe latter appealed.'

There are only two assignments of error. F. G. Hembry testified without objection that be was present when tbe fatal wound was inflicted and saw tbe defendant knock tbe deceased backward, get on top of him, and cut him with a knife in tbe stomach or side. A deaf mute afterwards testified that be saw tbe defendant take tbe arm of tbe deceased and “make like to cut him.” To tbe last statement tbe defendant excepted. This testimony corroborated 'Hembry and was itself substantive evidence; it was therefore properly admitted.

Dr. Mooneyhan was asked whether in bis presence tbe deceased said who cut him. Tbe proposed testimony was not res gestee, but tbe narrative of a transaction, and was not a dying declaration. It was hearsay.

Moreover, it does not appear what tbe answer would have been. There is

No error.