9 S.E.2d 248 | Ga. | 1940
1. The general grounds are neither argued nor insisted upon, and are therefore treated as abandoned. The errors complained of with respect to the admission of testimony and the charge of the court relate to whether the defendant was prejudiced in his right to have the jury recommend mercy. *208
2. The declarations narrated by the wife in her testimony, to the effect that the deceased, who had been shot through the back with a large shotgun charge, and who died a few hours thereafter, told her upon her reaching the hospital, that "this is a terrible thing," and then proceeded to bid her and his daughter good-bye, and that shortly thereafter he told the wife that he saw heaven and his baby who had died some years previously, all strongly tended to show that the deceased was then and there conscious of his actual dying condition. The court did not err in admitting these declarations over the sole objection that they did not tend to show that the deceased was then and there conscious of his dying condition. See Lyens v. State,
3. The declarations by the deceased to the wife being admissible for the purpose indicated, it was not error, in the absence of a request, for the court to fail to charge the jury that they were admitted solely for that purpose. Central of Ga. Ry. Co. v. Brown,
4. In order for the declarations of a decedent as to the cause of his death and the person who killed him to be admitted in evidence against the defendant, it must be made to appear that the person making the declarations was then in the article of death and conscious of his condition. Code, § 38-307. However, it is not necessary that the testimony relating to declarations by the deceased as to the cause of his death, the person who killed him, his dying condition, and his consciousness of such fact at the time the declarations were made, should come from the same witness. Simpson v. State,
Judgment affirmed. All the Justicesconcur.
While pleading not guilty, the defendant made the following statement to the jury: "The night this crime — I committed this crime, but I was sorry of it. These boys, Oscar and P. J. Grant, forced me in it. I did not want to do it. When I got in, I guess *210 my nerves went to pieces and the gun went off. If you find me guilty, I ask for the mercy of the court."
The general grounds are neither argued nor insisted on. The sole exceptions concern alleged errors in admitting certain statements by the widow of the deceased, as to his alleged dying declarations, and the charge of the court with reference thereto. These declarations were admitted, over objections, for the sole purpose, as announced by the court, of showing that the deceased was at that time conscious of his dying condition. The sole ground of exception to the admission of this evidence is that it was not sufficient to show that the deceased was conscious of that condition, did not throw light on that question, and its admission was prejudicial. Exception is taken to the charge of the court on the subject of dying declarations, on the ground that the charge itself did not also state that the declarations had been admitted solely for the purpose which the court had already indicated at the time they were received in evidence. Exception is further taken to the charge, in that it authorized the jury to consider the declarations of the deceased as stated by the wife, although they did not tend to prove any relevant fact embraced in the res gestae or relating to the cause of death and the person killing; and that the effect of the charge, in authorizing the jury to consider such declarations, was to bias the minds of the jury in their approach to the question of whether they would recommend mercy.