Anderson v. State

• Decision Date: 02 March 1905
• Citation: 50 S.E. 46,122 Ga. 161
• Parties: ANDERSON. v. STATE.
• Court: Georgia Supreme Court

122 Ga. 161

50 S.E. 46

ANDERSON.

v.STATE.

Supreme Court of Georgia.

March 2, 1905.

MURDER—DYING DECLARATIONS—NEW TRIAL— INSTRUCTIONS.

1. "A prima facie case is all that is necessary to carry dying declarations to the jury." Whether or not the person making them was conscious at the time, and realized that death was impending, are issues of fact.

[Ed. Note.—For cases in point,, see vol. 26, Cent. Dig. Homicide, § 459.]

2. A new trial will not be granted on the ground that illegal evidence was admitted, when it does not clearly appear from the motion that such evidence was in fact admitted.

3. Under the circumstances of this case it was not error to charge that the jury might Inquire whether or not the accused had an opportunity to kill the deceased.

4. The alleged newly discovered evidence was merely impeaching in character, and was therefore not ground for a new trial; the verdict was supported by the evidence, and was not contrary to law.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2331, 2332.]

(Syllabus by the Court.)

Error from Superior Court, Muscogee County; W. B. Butt, Judge.

Walter Anderson was convicted of murder, and brings error. Affirmed.

T. T. Miller and E. J. Wynn, for plaintiff in error.

John C. Hart, Atty. Gen., and S. P. Gilbert, Sol. Gen., for the State.

CANDLER, J. 1. The accused was convicted of murder, and recommended to mercy. There was no eyewitness to the homicide, and the accused denied having had anything to do with it. The state relied for a conviction largely upon evidence of dying declarations of the deceased, and exceptions to the admission of this evidence form the principal grounds of the motion for a new trial. It appeared that at the time the declarations were made the deceased's throat was cut and his windpipe severed; that it was with great difficulty that he could articulate at all, or that those present could understand what he said; that he had been informed by the doctor that in his (the doctor's) opinion he was in a dying condition; and that for the most part he was in a semiconscious condition, but when aroused by the physician he seemed to comprehend what was said to him. All the evidence on the subject was to the effect that the deceased stated that the accused, Anderson, had inflicted the wounds from which he subsequently died. This evidence was objected to on the ground that the proper foundation for it was not laid by showing that the deceased, at the time of making the declarations, was fully conscious, or that he knew or believed that he was in a dying condition. The court let the evidence go to the jury for what it was worth, and left it to them to determine the condition of the deceased at the time the statements were made, instructing them that, unless the deceased was conscious at the time, and aware of his condition, the declarations should not be considered. "A prima facie case is all that is necessary to carry dying declarations to the jury. It is an issue of fact whether or not they were made in the immediate prospect of death." Varnedoe v. State, 75 Ga. 181, 58 Am. Rep. 465. It is not necessary that the person whose statements are sought to be introduced should express himself as believing that he is in a dying condition. Consciousness of his condition may be inferred from the nature of his wound, or from other circumstances. Young v. State, 114 Ga. 849, 10 S. E. 1000. In the present case, if the jury were authorized to find that at the time the alleged declarations were made the deceased was conscious at all, there was no difficulty in finding that he was conscious of his condition, for leaving out of...