130 Ga. 307 | Ga. | 1908
Lead Opinion
S. B. Herrington, was tried under an indictment charging him with murder, and was found guilty of that crime. He made a motion for a new trial, which was overruled, and he excepted. He had been tried at a previous term of the court, under the same indictment, and found guilt3>- of voluntary manslaughter. Being then refused a new trial by the trial court, he brought the case to this court, where the judgment refusing a new' trial was reversed, on the ground that the judge below had erred in charging the law of voluntary manslaughter, this court being of opinion that “There was no view of the evidence, or the statement of the. accused, under which a verdict for voluntary manslaughter could be
The prayer of the deceased being, so far as the question of the time of its utterance is concerned, a part of the res gestae of the occurrence to which it related, the next question to be considered is; was his prayer for the forgiveness of his assailant for what he ’ had done to him, in its substance, a part of the res gestae'? It clearly was not the narrative of a past event, but seems to have been the spontaneous and natural expression of the impression made upon the mind of the speaker by the fatal rencounter and the incidents immediately connected therewith. It tended possibly to illustrate the state of his own mind at the time he was shot and immediately prior thereto toward the accused, and the deceased’s motives and the character of his actsjust before he was shot. In Goodman v. State, 122 Ga. 111 (49 S. E. 922), it was held: “It was not error to admit in evidence as res gestee the declaration of the deceased, ‘Oh, Lord, my poor wife and children!’ made as he fell from the fatal wound. Even if of doubtful admissibility, it was properly permitted to go to the jury, in order that they might consider what light, if any, it threw upon the condition of the mind or motives of the deceased at the time he was shot.” If the substance of that exclamation, which contained no- reference to what occurred at the time of the shooting, was such as to render it admissible as a part of the res gestae, surely in the present case the prayer of the deceased for the forgiveness of the man who had just shot him, for what he had thus done to him, was admissible as a part of the res gestee of the main fact under investigation. As we have seen, in Mitchell’s case, supra, the deceased asked a person who was assisting in bearing him away from the scene of the conflict, where he had received his mortal wound, “What did you shoot me for?” And this question, or remark, of the deceased was held admissible as res gestae of the shooting. The purport of this question was that the mortally wounded man did not know why he had been shot, that the impression on his mind, at that time, was that he had done nothing to provoke the shooting. In the present case, the purport of the prayer of the deceased for the man who had shot him was that he, the deceased, had done nothing which justified Herrington in shooting him. In Monday v. State,
Judgment affirmed.
Dissenting Opinion
dissenting.