149 Ga. 75 | Ga. | 1919
Lead Opinion
(After stating the foregoing facts.)
Error is assigned, in the second ground, on the following charge: “The court has admitted to you evidence of dying declarations of the deceased. I charge you that you should consider such testimony with great caution, and before you should consider the same you should be satisfied that such declarations were conscious utterances in the contemplation and the immediate article of death, and you are to pass finally for yourselves op the question whether or not the declarations were conscious utterances in the contemplation and immediate article of death.” The criticism is that by this language the court assumed that the declarations were in fact dying declarations; and that instead of saying the jury should “consider such testimony with great caution,” the court should have charged that such testimony should be received with great caution. While the charge was not entirely accurate, it is not cause for reversal.
Judgment affirmed.
Dissenting Opinion
dissenting. Where, in rebuttal of a witness for the defendant, the State introduces evidence of previous statements by the witness, contradicting his testimony delivered at the trial, and the contradictory evidence is of such character as that it might be understood by the jury to apply to the main issue in the case, and, if so applied, would be injurious to the accused, it is the duty of the judge, without request, to so charge the jury as to limit the application of the contradictory evidence to the impeachment of the witness. Under the facts of this case the omission to charge as just indicated was cause for reversal. Jones v. Harrell, 110 Ga. 373 (5), 381 (35 S. E. 690), where this court held: “If the husband be introduced as a witness and deny making such declarations, evidence tending to show that he did make them is admissible, not for the purpose of establishing the agency, but only to contradict him; and the trial judge should so instruct the jury.”