21 S.E.2d 861 | Ga. Ct. App. | 1942
1. In laying the foundation for the introduction of a dying declaration, proof that the deceased at the time of the declaration was in articulo mortis may be shown and inferred not only from his statement but from the nature of his wounds.
2. In a trial for murder the State makes out a prima facie case when proof is submitted that the defendant killed the deceased in the manner and in the county alleged in the indictment. The burden is then on the defendant to show justification, or such mitigating facts as will *8 reduce the grade of homicide from murder, provided always, of course, that the evidence for the State which shows such killing does not also show justification or mitigation. If it does do so the burden is not shifted.
1. The special ground complains that the court admitted certain testimony regarding a dying declaration. It will be noted from the evidence that the deceased was found wounded near the home of defendant, where he had gone several hours before the shooting. When the witness found the deceased a short distance from the house of defendant he had a talk with the deceased. The deceased, during the colloquy with the witness, stated that the defendant shot him and that he (deceased) was freezing to death. He died a short time thereafter. The evidence revealed that he was then suffering from a gun-shot wound and that the gun had *9 been fired at close range. The load penetrated along the hip, severed his intestines, and broke a leg within the hip region. Bleeding was profuse.
In order to submit a dying declaration to the jury it is only necessary for the State to submit facts which prima facie prove that the deceased was in the article of death at the time of the statement and that he was conscious of impending death. Code § 38-307 provides: "Declarations by any 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, shall be admissible in evidence in a prosecution for the homicide." See Gibbs v.State,
From the record in this case the court properly submitted the statement as a dying declaration to be considered by the jury along with the other evidence in the case.
2. While in a trial for murder the burden is on the State to *10
prove the homicide as alleged, it is a well and long established rule of evidence that in such a case when the State produces evidence sufficient to show that the defendant killed the deceased in the manner and in the county alleged in the indictment, a prima facie case is established unless the evidence produced by the State to prove such case within itself also shows justification or mitigation. Under all the circumstances as revealed by the record in the instant case the State made out a prima facie case. The defendant neither by his statement nor otherwise exonerated himself from the burden thus placed on him. See Rickerson v. State,
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.