Thomas v. StateThomas v. State
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- Before:
- Fish
Bеrry Thomas and Dink Thomas were jointly indicted for murder, in the only count in the indictment. Neither was charged as principal in the second degree. Berry Thomas alone was put on trial, and was convicted as charged, with recommendation to life imprisonment. His motion for a new trial having been overruled, he excepted.
The language first quoted is embraced in the Penal Code (1910), § 1026, and that last quoted is in substantial accord with a number of decisions of this court on the subject of dying declаrations. The judge, upon a preliminary hearing, concluded that the evidence was prima facie admissible which tended to show that the deceased made declarations as to the cause of his death, and the person who killed him, and that at the time he made them he was in the article of death and was conscious of his condition. Such evidence was then admitted, and of course there was no reason for informing the jury that it was admissible. There is no statute requiring the court to charge the jury ‘as to dying declarations when evidence as *271to them has been admitted; nor has this court ever held that the judge is bound to instruct the jury on the subject of dying declarations, in the absence of a timely and appropriate written request to do so. It has, however, held in a number of cases, where there was evidence tending to show confessions of guilt by the accused, that it was not cause for a new trial for the judge to fail, in the absence of a timely and appropriate written request, to instruct the jury on the subject of confessions. Among the cases in which such ruling was made are Nail v. State, 125 Ga. 234 (54 S. E. 145); Pierce v. State, 132 Ga. 27 (63 S. E. 792); Cantrell v. State, 141 Ga. 98 (80 S. E. 649); White v. State, 141 Ga. 526 (81 S. E. 440). In Nobles v. State, 98 Ga. 73 (26 S. E. 64, 38 L. R. A. 577), it was held, where the charge of the court upon the subject of confessions was in all other respects full and fair, that a mere failure to charge that they should be received with caution and scanned with care was not, in the absence of a request to charge to that effect, cause for a new trial, though it would have been better practice to have done so. In Lucas v. State, 110 Ga. 756 (36 S. E. 87), it was held: “The failure in the present case to instruct the jury that ‘ a confession alone, uncorroborated by other evidence, will not justify a conviction/ is cause for a new trial.” There the charge on the subject of confessions, the court said, was full and accurate save only that there was an entire failure to inform the jury that an uncorroborated confession was not of itself sufficient in law to warrant a conviction. It was said further, that, as the court undertook to instruct the jury on the law relating to confessions, the failure to mention the rule as to the necessity that they be corroborated probably impressed them with the idea that they could convict on the confessions alone. Moreover the court said, “The case at best is close and doubtful, and it is by no means clear that the evidence warranted the verdict.” The Penal Code ‘(1910), § 1031, declares: “ Confessions of guilt should be received with great caution. A confession alone, uncorroborated by othеr evidence, will not justify a conviction.” And section 1032 is: “To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury.” There are decisions to the effect that the admissibility of evidence as to confessions is determined рrimarily by the court, but its judgment is not conclusive, and the jury *272must at last determine whether any confessions were made, and, if so, whether they were freely and voluntarily made without the slightest hope of benefit or remotest fear of injury. Price v. State, 114 Ga. 855 (3, 4), 856 (40 S. E. 1015), and cases cited. A similar rule is applicable to the admission of evidence tending to show-dying declarations; that is, that the court passes primarily on the question as to whether they are prima facie admissible, and- if held to be so, and they are admitted, it is for the jury to finally pass on the question whether or not the declarant was in articulo mortis, and at the time was conscious of his condition. Hawkins v. State, 141 Ga. 212 (80 S. E. 711), and cases cited.
It appears, therefore, that there is as much reason for requiring an instruction to the jury on the subject of confessions, where the evidence authorizes it, as there is for instructing them as to the law of dying declarations where the court has admitted them. And since it is not cause for a new trial that the court, in the аbsence of a timely and appropriate written request, fails to give the jury the law as to confessions, we feel constrained to hold that such failure to instruct the jury as to dying declarations is not cause for a new trial, although we think the better practice is to instruct in such cases, without request to do sо. There are a number of cases where the court, in passing upon the admissibility of alleged dying declarations, said in effect that the evidence was admissible “ under proper instructions to the jury.” Nesbit v. State, 43 Ga. 238; Dumas v. State, 62 Ga. 58; Mitchell v. State, 71 Ga. 128; Young v. State, 114 Ga. 849 (40 S. E. 1000); Anderson v. State, 122 Ga. 161 (50 S. E. 46); Jones v. State, 130 Ga. 274 (60 S. E. 840) ; Lyens v. State, 133 Ga. 588 (66 S. E. 792); Perdue v. State, 135 Ga. 277 (69 S. E. 184); Hawkins v. State, 141 Ga. 212 (80 S. E. 711). In not one of these cases, however, was the question involved as to whether the court was bound, in the absence of an appropriate and timely written request, to instruct the jury on the subject of djdng declarations. It is not a general rule that the admissibility of evidence is dependent upon an instruction to be subsequently given in relation thereto. And we do not understand why the admissibility of evidence as to dying declarations should be dependent upon proрer instructions to be given the jury on the subject. The judge passes primarily upon the admissibility of evidence tending to show that the declarant, while in the article of death and con-*273scions of Ms condition, stated “ the cause of Ms death and the person who killed him,” and if, in his opinion, the evidence be prima faсie admissible, it is thereupon admitted without regard to any instructions the judge may subsequently give in relation to it; but the jury finally passes on the question whether or not the declarant was in articulo mortis when he made the declarations, and was then conscious of his condition, and considers all thé evidence as to the аlleged dying declarations in connection with all the other evidence in the case.
■ We cite other decisions bearing on the point under consideration. It has been held not to be cause for a new trial that the judge, in the absence of an appropriate and timely written request, fails to instruсt the jury in respect to the impeachment of witnesses, or as to contradictory evidence, or as to the rule for determining the credibility of witnesses. Brown v. State, 148 Ga. 509 (97 S. E. 69), and cases cited. Yet the Civil Code, § 5883, declares: “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” (Italics ours.) The admissibility of evidence as to thеse matters is, of course, not dependent upon instructions to be given as to such evidence, because, if admitted, no instructions need be given unless properly requested. And it has been held that the rules for determining the credibility of other witnesses apply in passing upon the credibility of the declarant of аlleged dying declarations; and that failure to instruct in respect to such rules as to him is not cause for a new trial, in the absence of a proper request. Hall v. State, 124 Ga. 649 (52 S. E. 891); Devereaux v. State, 140 Ga. 225 (78 S. E. 849); Howard v. State, 144 Ga. 169 (86 S. E. 540). So in cases not depending wholly upon circumstantial evidence, it does not furnish cause for a new trial that the court fails, in the absence оf a proper request, to charge the law touching such evidence (Hicks v. State, 146 Ga. 331, 91 S. E. 57), though the Penal Code (1910), § 1010, declares: “To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that оf the guilt of the accused.” And who eSn say, where there is both direct and circumstantial evidence, which character’ of evidence most impressed the jury and upon which they found a verdict? In passing upon the admissibility of the evidence of *274either kind it would not be held to be admissible “under proper instructions of thе court,” or “ subject to the charge of the court.” In Robinson v. State, 84 Ga. 674 (11 S. E. 544), it was held: “As the State did not rely wholly on the evidence of the alleged accomplice to connect the accused with the offense, it was not incumbent upon the court, without request, to instruct the jury touching corroboration; ” approvingly cited in Cantrell v. State, 141 Ga. 98 (3) (80 S. E. 649). In Godwin v. Atlantic Coast Line R. Co., 120 Ga. 747 (48 S. E. 139), it was held: “The failure of the court to charge on the subject of expert testimony was no cause for a new trial, there having been no request for a charge on that subject.” Again, it has been held: “Where evidence is admissible for one purpose, it is not error for the court to fail to instruct the jury to limit its сonsideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury.” Central of Georgia Ry. Co. v. Brown, 138 Ga. 107 (74 S. E. 839). We might cite — but deem it unnecessary — other decisions of this court to the effect that failure of the court, when no proper request is made, to instruct the jury as to evidence admitted in respeсt to its applicability to certain features of the case, the meaning of words technical or otherwise, and as to correct methods of calculation, etc., furnishes no ground for the grant of a new trial.
Judgment affirmed.
All the Justices’ concur.