79 Ga. 87 | Ga. | 1887
Asa Whitaker was indicted jointly with Chapman Scott, Evans Harris and Jim Sheely, for the murder of William Drakeford, and being found, on his trial, guilty of voluntary manslaughter, he made a motion for new trial, which was overruled; and thereupon he excepted and brought the case to this court. The first four grounds of the motion are the usual grounds, that the verdict is contrary to the evidence, etc. The amended motion contains the special grounds, which are:
(1) That the court erred in rejecting testimony as to a difficulty between the defendant and Frank Robinson, which occurred a short time before the shooting of McDonald, the uncle of the deceased, William Drakeford. This
(2) Because the court erred in admitting, over defendant’s objection, testimony of his co-defendant, Scott, as to his conversation with another defendant, Harris, while they were confined in the guard-house. This examination was had, as the court certifies, for the purpose of laying the foundation to impeach this witness, and was admitted for that purpose and that purpose only.
(3) Because the court erred in ruling out the dying declarations of Drakeford.
(4) Because there was error in failing to charge the jury as to the law of involuntary manslaughter, and in not giving them in charge sections 4334, 4335 of the code, viz. that all other instances which stand upon the same footing of reason and justice as those enumerated, shall be justifiable homicide ; and that the homicide appearing to be j ustifiablo, the person indicted shall, upon the trial, be fully acquitted and discharged.
The case made by the evidence was briefly this: On the night of the 24th of December, 1885, an entertainment was given by Bomar, at a house on Martin street,
All the preceding cases are reviewed in MitohelVs case, and we do not think that it will appear from any of them that the dying declarations have been admitted, unless the testimony showed that the person making' them was conscious of his condition and believed he was in the article of death. In this case it is very far from appearing that' he had such consciousness. The statements made by the dying man to Gifford, between four and five o’clock on the evening previous to his death, were admitted as dying declarations. He said, “I am going to die; I cannot live.” The witness replied, “Pshaw, you won’t; you won’t die; you are not seriously hurt.” “Yes,” he said, “I cannot live.” The dying declarations thus given in evidence related strictly to the cause of his death, and to the persons who inflicted the fatal wound. Neither of the other witnesses were present at this time, and this testimony throws no light as to his consciousness of his condition at the time it is claimed he made declarations to them.
Judgment affirmed.
These witnesses testified that they visited Drakeford on the afternoon before he died, and were there between four and five o’clock; and after seeking to lay the foundation for the admission of dying declarations, the witness, Lula. Col - lier, offered to testify to a long conversation between her and Drakeford as to the difficulty, where it began, that he had nothing to do with it, that his un le was shot and he was running after the man, etc. This was excluded.