Ayers v. State

• Decision Date: 11 September 1959
• Docket Number: No. 20530,20530
• Citation: 110 S.E.2d 669,215 Ga. 325
• Parties: Austin AYERS v. STATE.
• Court: Georgia Supreme Court

Page 669

110 S.E.2d 669

215 Ga. 325

Austin AYERS v. STATE.

No. 20530.

Supreme Court of Georgia.

Sept. 11, 1959.

Rehearing Denied Oct. 9, 1959.

Murphy & Murphy, Bremen, Claude V. Driver, Buchanan, for plaintiff in error.

Howe & Murphy, Harold L. Murphy, Buchanan, Dan Winn, Sol. Gen., Cedartown, Eugene Cook, Atty. Gen., Rubye G. Jackson, Deputy Asst. Atty. Gen., for defendant in error.

Syllabus Opinion by the Court.

MOBLEY, Justice.

1. The evidence in this case is substantially the same as that in Ayers v. State, 214 Ga. 156, 103 S.E.2d 574, in which this court affirmed the overruling of the motion for new trial on the general grounds. Accordingly, the trial court did not err in overruling the defendant's motion for new trial on the general grounds in the second trial.

2. In special grounds 1 and 2, the defendant assigns as error the admission in evidence of testimony as to certain statements made by the deceased between the time he was shot and his death. Luther Mason testified that, at the time he got back in the car just after running away from the shooting, the deceased made the statement: 'Get me to a doctor. Get me to a doctor. I am going to die.' The other statement objected to ('I ain't going to make it. Let my folks know about it. Mr. Ayers shot me') was made to Sheriff L. P. Allen by the deceased in the presence of the witness Mason en route from the doctor's office in Buchanan to the hospital in Bremen. The testimony of Sheriff Allen upon which error is assigned is that, while on the way to the hospital in Bremen, the deceased, who was conscious, told the sheriff that he wanted to tell him how it happened. The sheriff told him to wait until they got him to the hospital, and the deceased said that 'he might die and he would like to tell me. He said he was shot without cause, that Mr. Ayers shot him without cause when he started to get back in the truck.' Mason testified that he was trying to crank his car when he heard three rifle shots. He immediately jumped out of the car and saw the deceased coming toward him about forty feet away. The deceased yelled that he had been shot; so Mason went to him and assisted him in getting into the automobile. Just as Mason got him into the car, the defendant began shooting; so Mason ran in front of the automobile to use it as a shield. As he did so, Talmadge Wommack slipped under the steering wheel and started driving off. As Wommack drove around a curve, Mason managed to get into the car, at which time the deceased made the statement objected to, viz.: 'Get me to a doctor. Get me to a doctor. I am going to die.' This statement was admissible as part of the res gestae, since it was made a few minutes after the deceased had been shot and while the defendant was shooting at the automobile. See Thornton v. State, 107 Ga. 683, 686, 33 S.E. 673; O'Neal v. State, 172 Ga. 526(1), 158 S.E. 51; Turner v. State, 212 Ga. 199, 91 S.E.2d 501. The statements made to Sheriff Allen in the presence of the witness Mason were admissible as dying declarations. The ultimate determination of whether or not a statement is a dying declaration is for the jury; whereas a prima facie case is all that is necessary to carry the declaration to the jury. Findley v. State, 125 Ga. 579(1), 54 S.E. 106. 'Declarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide.' Code, § 38-307. 'There being evidence that the deceased was 'conscious that he was going to die,' that he said 'he was killed,' the attending physician having sworn that he was in the article of death, and that he did die the next morning after having been shot, the court did not err in admitting the evidence.' Swain v. State, 149 Ga. 629, 630(4), 101 S.E. 539, 540. See also Washington v. State, 137 Ga. 218, 222, 73 S.E. 512. Before he testified regarding the alleged dying declaration made en route to the hospital, Mason testified that he had taken the deceased to Dr. Devore's office in Buchanan and that Dr. Devore stated that he could do nothing for him and that he should be taken to the hospital in Bremen. It was en route to Bremen that the deceased made the statement to Allen in Mason's presence. He died four days later. 'The actual period of survival after making the declaration is not controlling. The necessary element is the declarant's expectation; and the subsequent duration of life, whatever it may turn out to be, has no relation to his state of mind when he made the declaration * * * The question does not depend upon the length of time between the declaration and the death of the declarant, but upon the declarant's mind at the time of the declaration, and his belief that he is in a dying state.' Johnson v. State, 169 Ga. 814, 823, 152 S.E. 76, 81. See also Miles v. State, 182 Ga. 75(1), 185 S.E. 286, where the declarant lived thirty-three or thirty-four days after making the declaration; Emmett v. State, 195 Ga. 517, 25 S.E.2d 9, where the declarant lived three and one-half months after making the declaration; and Davis v. State, 204 Ga. 467, 50 S.E.2d 604, where the declarant lived more than a week after making the declaration. Here, the deceased was in the article of death at the time he made the statement, and the wording of the declaration is sufficient to show that he was conscious that he was in the article of death. 'It is not necessary for the state to show affirmatively that a person who had been shot said he was in a dying condition, in order to admit proof of his declarations, if in point of fact he was in articulo mortis, and the circumstances were such that he must have known that he was in a dying condition * * *' Washington v. State, 137 Ga. 218(1), 73 S.E. 512, supra. See also Campbell v. State, 11 Ga. 353(3). There was no error in admitting the statements objected to.

3. In special ground 3, the defendant contends that the trial court erred in admitting in evidence a .22 rifle. As held by this court when this case was previously before us (Ayers v. State, 214 Ga. 156, 159 (2), 103 S.E.2d 574, supra), this objection is without merit.

4. In special ground 4, the defendant assigns as error the denial of the defendant's motion for mistrial made after the special counsel for the State read division 1 of the previous ...