Opinion
13233.
MAY 14, 1940.
Murder. Before Judge Pomeroy. Fulton superior court. December 28, 1939.
Jesse B. Simmons and Otey B. Mitchell, for plaintiff in error.
Ellis G. Arnall, attorney-general, John A. Boykin, solicitor-general, J. W. LeCraw, E. E. Andrews, E. J. Clower and C. E. Gregory Jr., assistant attorneys-general, contra.
1. The general grounds are neither argued nor insisted upon, and are therefore treated as abandoned. The errors complained of with respect to the admission of testimony and the charge of the court relate to whether the defendant was prejudiced in his right to have the jury recommend mercy.
2. The declarations narrated by the wife in her testimony, to the effect that the deceased, who had been shot through the back with a large shotgun charge, and who died a few hours thereafter, told her upon her reaching the hospital, that "this is a terrible thing," and then proceeded to bid her and his daughter good-bye, and that shortly thereafter he told the wife that he saw heaven and his baby who had died some years previously, all strongly tended to show that the deceased was then and there conscious of his actual dying condition. The court did not err in admitting these declarations over the sole objection that they did not tend to show that the deceased was then and there conscious of his dying condition. See Lyens v. State, 133 Ga. 587, 597 ( 66 S.E. 792).
3. The declarations by the deceased to the wife being admissible for the purpose indicated, it was not error, in the absence of a request, for the court to fail to charge the jury that they were admitted solely for that purpose. Central of Ga. Ry. Co. v. Brown, 138 Ga. 107 (2) ( 74 S.E. 839); Haden v. State, 176 Ga. 304, 310 (7, b) ( 168 S.E. 272). Especially would this be true where, as it here appears, the court announced in his ruling that they were admitted solely for such purpose, and such announcement, so far as the record shows, was made in the presence of the jury.
4. In order for the declarations of a decedent as to the cause of his death and the person who killed him to be admitted in evidence against the defendant, it must be made to appear that the person making the declarations was then in the article of death and conscious of his condition. Code, § 38-307. However, it is not necessary that the testimony relating to declarations by the deceased as to the cause of his death, the person who killed him, his dying condition, and his consciousness of such fact at the time the declarations were made, should come from the same witness. Simpson v. State, 168 Ga. 598 (2), 603 ( 148 S.E. 511). Accordingly, while the testimony of the decedent's wife as to his declarations to her did not indicate the cause of his death or the person who killed him, still, since they strongly tended to show that the decedent was then and there in a dying condition and was conscious thereof, they were admissible to support other declarations made by the decedent to other persons just before the time when they were made to the wife, in which other declarations he had indicated, not only consciousness of his dying condition, but facts going to show the cause of his death and the person who killed him. The declarations made to the wife having been properly admitted as tending to show that the deceased was in a dying condition and conscious thereof at the time other declarations were made to other witnesses as to the cause of his death and the person who killed him, the court, in charging the jury upon the law of dying declarations, did not commit error on the theory urged by the defendant that, since the declarations testified to by the wife did not relate to the cause of his death or the person who killed him, the declarations as related by her could only tend to prejudice the jury in their approach to the question of whether they would recommend mercy.
Judgment affirmed. All the Justices concur.
No. 13233. MAY 14, 1940.
Jimmie Lee Gibbs was indicted with three other persons for the murder of T. W. Adcock by a shotgun. He was convicted of murder, without a recommendation. Evidence for the State showed, both by written and oral confessions of the defendant and by other testimony admitted without objections, that this defendant and his companions, between 6 and 6:30 in the evening, went to the grocery store of which the deceased was manager, for the purpose of robbing him; that they had a single-barrel shotgun with which one of the companions first held up the deceased with the command to throw up his hands and walk back against the wall; that while the deceased was in this position and the companion was searching him, the companion handed the gun to the defendant; that the companion took and emptied the pocketbook of the deceased, opened the cash register, asked the deceased where "the other money" was, and when he replied "that's all," and some one passed in front of the store, the defendant shot the deceased in the back, making a large wound apparently with buckshot; that the deceased was carried to a hospital at about 6:35 or 6:40 o'clock in the afternoon, and on the way told those who were taking him there that he knew he was going to die and could not possibly live, and related essential facts as to the robbery and the shooting by the two men who came into his store. These other declarations corroborated essential parts of the defendant's oral and written confessions, and testimony by other witnesses as to the circumstances of the robbery and homicide and as to the identity of the defendant as one of the participants in the robbery and as the one who fired the fatal shot. Immediately after the shooting, the owner of the store came there, found the open cash register, and a pocketbook, which was identified as having belonged to the deceased, lying on a meat block, and containing no money. The doctor in charge of the emergency clinic at the hospital, from his official record, fixed the time when he attended the deceased at 6:55 o'clock. Death occurred at 1:50 a. m. on the same night.
While pleading not guilty, the defendant made the following statement to the jury: "The night this crime — I committed this crime, but I was sorry of it. These boys, Oscar and P. J. Grant, forced me in it. I did not want to do it. When I got in, I guess my nerves went to pieces and the gun went off. If you find me guilty, I ask for the mercy of the court."
The general grounds are neither argued nor insisted on. The sole exceptions concern alleged errors in admitting certain statements by the widow of the deceased, as to his alleged dying declarations, and the charge of the court with reference thereto. These declarations were admitted, over objections, for the sole purpose, as announced by the court, of showing that the deceased was at that time conscious of his dying condition. The sole ground of exception to the admission of this evidence is that it was not sufficient to show that the deceased was conscious of that condition, did not throw light on that question, and its admission was prejudicial. Exception is taken to the charge of the court on the subject of dying declarations, on the ground that the charge itself did not also state that the declarations had been admitted solely for the purpose which the court had already indicated at the time they were received in evidence. Exception is further taken to the charge, in that it authorized the jury to consider the declarations of the deceased as stated by the wife, although they did not tend to prove any relevant fact embraced in the res gestae or relating to the cause of death and the person killing; and that the effect of the charge, in authorizing the jury to consider such declarations, was to bias the minds of the jury in their approach to the question of whether they would recommend mercy.