9 Ga. App. 403 | Ga. Ct. App. | 1911
Under this testimony we think the statements attributed to the deceased were prima facie admissible as dying declarations. “Dying-declarations, znade 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, are admissible in evidence in a prosecution for the homicide.” Penal Code (1910), § 1026. The admissibility of dying declarations is only prima facie a question for the court. After the testimony as to the statements of the deceased is admitted, it is for the jury to determine whether they were in fact made by •him when he was in the article of death and when conscious of his
In the present case the objection to the testimony, if any, should have been-addressed to tbe jury, instead of to the court, and placed upon the ground that the circumstances under which the statements were made were .such as to rob them of that sanctity which is equivalent to the administration of an oath. Three things must be shown to render statements admissible as dying declarations within the meaning of the law: (1) that the deceased made the statements; (2) that he was in a dying condition; and (3) that he was conscious of that fact. The existence of the two latter requisites should he ascertained and determined before any inquiry is made into the nature of tbe statements themselves; but in this case the witness was permitted to testify, and then a motion was made to exclude the testimony as a whole. Addressing ourselves, as the trial judge had to do, to the question whether Jim Morris was in a dying condition and conscious of that fact, it must be remembered that both of these facts are susceptible of proof by circumstantial as well as by direct evidence. That he was in a dying condition might be determined in the first instance by the court, and subsequently by the jury, from the fact that Calloway talked ■with him about 9 o’clock at night, and that he was dead before daylight; and likewise it was inferable from the statements of the' deceased that he, too, thought that he was going to die and that he was conscious of his condition. We do not say that the fact that the deceased stated lie thought he was going to die necessarily compelled a conclusion on the part of the jury that lie really believed he was going to die, but certainly the judge, in determining as to the admissibility of the testimonjq could not adjudge that the deceased falsely stated this opinion.
Even, however, if the jury in any case should find it to be it*, duty to consider the dying declarations as a part of the testimony in the case„ they should be received with the utmost caution, ft
if there was in fact such a ground of the motion for a new trial, it should not have been stricken by the judge. It should either have been approved and certified to be true, or disapproved as untrue. This-is the proper practice, for the reason that the motion for new trial is the handiwork and property of the movant, and, though its value may be entirely dependent upon the approval of the trial judge, his only duty is to disapprove statements of fact which are untrue, and approve those which are true, either unqualifiedly or with such qualifications as will make the truth apparent. We have said thus much in regard to the matter only because we know that the upright judge who presided at this trial is incapable of doing any one an injustice, and yet, as our attention has been several times directed to similar instances in other cases, we have thought it best to use this occasion to call the attention of our brethren of the trial bench to a practice more proper than that which has sometimes prevailed even without criticism. As was held in Denton v. State, 6 Ga. App. 3 (63 S. E. 1132), it is the duty of the judge to point out distinctly to the jury that caution should be observed in the use-of dying declarations, and failure to do this is ground for a new trial. However, the exception that the verdict is contrary to law is not sufficient to present the point.
Judgment affirmed,.