1. “Declarations accompanying an act, or so nearly cоnnected therewith in time as to be free from all suspicion of deviсe or afterthought, are admissible in evidence as part of the res gestae.” Penal Code (1910), § 1024. “No precise point of time can bе fixed a priori when the res gestae ends. Each case turns on its own circumstances. Indeed, the inquiry is rather into events than into the precise time which has elapsed.” Thornton v. State, 107 Ga. 686 (
2. Complaint is made, that, after admitting the evidence of Pearson as shown in the statement following, the court instructed the jury they shоuld not consider the evidence if they were convinced that the dеclarations were not made as “a part of the res gestse but as product of afterthought.” This instruction, if not technically applicаble, was more favorable to the accused than otherwise, and therefore not harmful. Thompson v. State, 166 Ga. 512 (11), 515 (
3. Complaint is also made of the failure of thе court to give, in connection with the charge referred to in the preceding headnote, a charge that the evidence in questiоn “should be received with great care, and weighed with caution,” if the jury should believe the statements attributed to the deceased to be truе and should believe them to be part of the res gestee. Such an instruction would be appropriate as applied to dying declarations, but is not required as applied to evidence admitted as a рart of the res gestae.
4. Complaint is made in the motion for new trial, that, if the testimony held in the first headnote to be admissible as res gestae amounted to a dying declaration, the court should have charged thе jury that if they believed that the statements so made were made while thе deceased was in a dying condition, and conscious of that fact, the statements should be received with great care and weighed with great caution. It not appearing that the declarations were treated by the court or counsel as dying declarations, the cоurt did not err in failing' to charge on that subject.
5. In another ground of the motion for new trial complaint is made thаt the court permitted Dr. Bedingfield to testify as follows: “Manning O’Neal seemed to be unwilling to do anything for the wounded man. I told Manning O’Neal: . . T am your friend in this thing, and wе want to save that boy and not let him die. I-Ie has not got any money, and the best thing for you now is to get him to a hospital and get that leg amputated and save his life if you can, and thereby you might save a lawsuit and compromise it where it is.’ Manning O’Neal said ‘All right, if you think you can do that, I will pay his expеnses.’ . . He
6. The court did not err in failing to charge the law on either of the grades of manslaughter. This ground of the ^motion shows that counsel for the State and the defendant had “agreed in open court . . with the apрroval of the court, before arguing the case to the jury, that there was no lower grade of homicide involved in the ease, and that а verdict should be rendered either for murder or an acquittal.” Threlkeld v. State, 128 Ga. 660 (
7. The verdict is supported by evidence.
Judgment affirmed.