130 Ga. 361 | Ga. | 1908
Amos Bobinson was indicted for murder and found guilty, with a recommendation that he be imprisoned in the penitentiary for life. He moved for a new trial, and upon the overruling of the motion filed a bill of exceptions. The headnotes sufficiently deal with the grounds of the motion for a new trial, except that complaining of the charge in regard to dying declarations. Such declarations, made by a person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, are admissible in evidence in a prosecution for the homicide. Penal Code, §1000. The presiding judge first charged the jury that the law presumes that a dying declaration made under such circumstances is true. Eealizing that this instruction was erroneous, he subsequently recalled the jury from the room to which they had retired, informed them that he had not intended to make that statement and desired to correct it, and then recharged them on the subject. In this second charge, referring to a statement made by one who is dying and is conscious of his condition, he'said that “the law treats that statement as having the sanctity of truth, and gives it such dignity as allows it to be admitted in evidence to be considered by the jury.” The charge that the law treats a dying declaration as having “the 'sanctity of truth” was subject to the same objection as the original charge. It dealt with the weight of the evidence, not merely its admissibility. Doubtless this was unintentional on the part of the learned judge who gave the charge; but jurors are often, perhaps generally, inclined to give great weight to dying declarations without being instructed to do so; and if they are informed by the judge that the law treats such statements as having “the sanctity of truth,” it is calculated to give undue emphasis to the weight to be attached to such evidence. For this error a new trial must be granted. As the case is returned to the superior court for another trial, we express no opinion as to the sufficiency of the evidence. Judgment reversed.