Jones v. State

• Decision Date: 02 March 1908
• Parties: JONES v. STATE.
• Court: Georgia Supreme Court

60 S.E. 840

130 Ga. 274

JONES v. STATE.

Supreme Court of Georgia

March 2, 1908

Syllabus by the Court.

An assignment of error to the overruling of a motion to change the venue cannot be made in a motion for a new trial, but should be laid in exceptions duly made.

In the trial of a murder case, if at the time of making declarations the condition of the wounded party making them, the nature of his wounds, the length of time after making the declarations before he expired, and all the circumstances make a prima facie case that he was in the article of death and conscious of his condition when he made the declarations, such declarations should be admitted in evidence by the court under proper instructions to the jury.

[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Homicide §§ 430-437.]

The admission of dying declarations as evidence does not contravene that provision of the Constitution of the United States which provides that in all criminal prosecutions the accused shall be confronted with the witnesses against him.

[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, § 427.]

Statements made by a defendant, charged with murder, that he did the killing charged because of certain facts which, if true, furnished no legal excuse or justification therefor, amount to a confession.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1139-1145.]

The evidence warranted the charge on conspiracy.

No distinction need be made in an indictment, or in a verdict, between principals in the first and second degree; and where two persons are charged in an indictment with murder as principals in the first degree, if the evidence shows one of them to be guilty in the second degree, he can be convicted under such indictment.

Points made in the record, but not referred to in the briefs of counsel, will be treated as abandoned.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3011-3013.]

An assignment that a charge stating that the burden was on the defendant to prove an alibi by a preponderance of the evidence was error, because the defendant is only required to prove such defense to a reasonable certainty, is without merit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1833-1837, 1852, 1877-1882.]

The assignment of error on the charge upon the subject of circumstantial evidence is without merit.

Where two persons are jointly indicted for an offense, and there is evidence of a confession by one, he has no good ground for complaint that the court failed to charge that such evidence could only be considered as against him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3085-3089.]

Under the facts of this case, the defendant Porter Jones was not injured by the failure of the court to charge the jury that the evidence of statements made by the deceased to the effect that Albert Jones shot him, admitted as dying declarations, could not be used to show that Porter Jones shot the deceased.

The charge upon the subject of good character was sufficient, in the absence of a timely written request for other instructions thereon.

The charge of the court, construed as a whole, could not have been understood by the jury to mean that, if either one of the two defendants jointly indicted was guilty, both should be convicted.

Where, on the trial of two persons charged with murder, the state proved by evidence, both direct and circumstantial, that a homicide was committed, and the accused did not controvert that fact, but introduced evidence which referred to the deceased as having been killed, and as to one of the accused sought to prove an alibi, and as to the other sought to show insanity and previous good character alone, after conviction it furnished no ground for a new trial that the court, in charging the jury, referred to the death of the deceased as a homicide, and told the jury that "the defendants in this case deny, both of them, that they were present and perpetrated the homicide, committed the homicide, or were present aiding and abetting in its perpetration"; there being nothing in the record or bill of exceptions to show that this was not a correct statement of the position taken by the accused or their counsel, and the court having certified that there was no contention on the part of defendant's counsel that a homicide had not been committed.

Error from Superior Court, Putnam County; H. G. Lewis, Judge.

Porter and Albert Jones were convicted of murder. Both made a motion for a new trial, which was granted to Albert, but denied to Porter, and Porter brings error. Affirmed.

Holden and Atkinson, JJ., dissenting from the ruling made in the last headnote.

Jno. R. Cooper and Alexander Akerman, for plaintiff in error.

Jos. E. Pottle, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

HOLDEN J.

Porter Jones and his brother, Albert Jones, were jointly indicted for the murder of Robert Adams. They were tried together and found guilty of murder, with recommendation to mercy. Both made a motion for a new trial, which was granted to Albert Jones, and denied to Porter Jones, who filed a bill of exceptions to the judgment of the court below refusing him a new trial.

1. The defendant Porter Jones made a motion for a change of venue, upon the ground that he could not get a fair and impartial trial in Putnam county, because of false rumors, threats of mob violence, excitement and indignation among the people, and high feeling against the defendant. After hearing evidence in behalf of the state and the defendant, the court overruled the motion, and one ground of the motion for a new trial is the refusal of the court to grant the motion for a change of venue. If the defendant wished a review of the judgment refusing the motion for a change of venue, proper exceptions to such judgment should have been made. It does not appear that any exceptions were filed. The refusal of such motion cannot be made the grounds of a motion for new trial. Williford v. State, 121 Ga. 173, 48 S.E. 962. It appears, however, from the evidence introduced upon the hearing of said motion, that the court did not abuse its discretion in refusing to grant a change of venue, and his judgment in overruling the motion would not be overturned, even if we were permitted to consider the question as to whether or not the court committed error in rendering the same.

2. Defendant complains that the court committed error in allowing the testimony of Mrs. Adams that the deceased told her that Albert Jones shot him, that they had no words, and he did not know what he (Albert Jones) did it for. This testimony was admitted as dying declarations of the deceased, and which the evidence shows were made about 15 minutes before his death and a short time after he received the wounds which caused his death. The deceased was found lying on the ground near his home a short time after pistol shots were heard, and the words testified to were the only ones he uttered after he was found. According to the testimony of the physicians, he was shot through the heart. There was no direct testimony that the deceased was conscious of the fact that he was going to die; but the evidence was sufficient to warrant the conclusion that he was aware of this fact when he made the statements. In order to admit declarations of the deceased as dying declarations, it is unnecessary to prove by direct testimony that he was in the article of death and conscious of his condition; but circumstances may be shown from which these facts may be inferred. Whenever such circumstances make a prima facie case, it is the duty of the court to admit the testimony. The nature of the wound, the condition of the deceased, and all the circumstances may be shown to illustrate the question as to whether or not the deceased was in the article of death and conscious of his condition when the statements were made; and, if such circumstances were sufficient to make a prima facie showing that the deceased was in such condition and conscious thereof when he made the statements, the question should be submitted to the jury, leaving them to determine whether the evidence was sufficient to establish the dying condition of the deceased and his knowledge of such condition. In this case, the fact that when his wife found him the deceased was prostrate on the ground, that he was shot through the heart, that he was unable to get one of his arms to the shoulder or neck of his wife, who was assisting him to his home, that he never spoke again after the words complained of were uttered, and that he died in 15 or 20 minutes after making the statement, were circumstances from which the jury might infer that when he made the declarations he was in the article of death and conscious of his condition; and it was the duty of the court to submit such evidence to the jury, under a proper charge, which was given, that they must not consider it, but must ignore it, unless they believed that the deceased was in the article of death and conscious of his condition at the time, and should only consider them in the further event that they believed such declarations were in fact made. Anderson v. State, 122 Ga. 161, 50 S.E. 46; Young v. State, 114 Ga. 849, 40 S.E. 1000; Oliver v. State (decided at the present term) 59 S.E. 900.

3. The admission of dying declarations does not contravene that provision of the Constitution of the United States which declares that in all criminal prosecutions the accused shall be confronted with the witnesses against him. Campbell v State, 11 Ga. 353. What is said here and in the preceding division of this opinion disposes of the third ground of the amendment to the motion for a new trial,...