Bush v. State

• Citation: 34 S.E. 298,109 Ga. 120
• Parties: BUSH v. STATE.
• Decision Date: 27 October 1899
• Court: Supreme Court of Georgia

34 S.E. 298

109 Ga. 120

BUSH v. STATE.

Supreme Court of Georgia

October 27, 1899

Syllabus by the Court.

1. When, in passing on a motion to continue a criminal case because of the absence of two material witnesses, the presiding judge directed the trial to proceed, with the statement that he would send for the witnesses, and, if he did not procure their attendance, he would then entertain a motion to continue from the defendant, and when, during the progress of the trial, an officer returned with one of such witnesses, reporting that the other could not be found, and the defendant did not renew the motion, but without objection the case proceeded to verdict, a new trial will not be granted because the continuance was thus refused.

2. There was no error in excluding the answer to a question relating to character, the question itself not being in proper legal form. Had it been otherwise, this court could not have considered the point thus sought to be made, because the ground of the motion does not state what the witness would have answered had he been permitted.

3. Such conversation and conduct of the parties as are properly parts of the res gestæ of the homicide may lawfully go to the jury in a dying declaration made by the deceased.

4. When, in a prosecution for a homicide, dying declarations are sought to be admitted, the judge must first determine from preliminary evidence whether, prima facie, they were competent as such, and made under circumstances entitling them to admission; but, having been admitted, it is for the jury to finally pass on the question whether or not such declarations of the deceased were conscious utterances in the apprehension and immediate prospect of death. A charge which does not so instruct the jury, but may be so construed as that the jury will infer that they must take such admissions as a part of the evidence in the case without a qualification that they must finally determine whether such declarations were made, and if they were at a time when the deceased was in the article of death, and conscious of his condition, was error.

5. No other errors requiring a reversal of the judgment appear in the motion for new trial.

Error from superior court, Miller county; W. N. Spence, Judge.

Fletcher Bush was convicted of murder, and brings error. Reversed.

W. D Sheffield, C. C. Bush, and R. H. Powell & Son, for plaintiff in error.

John R Irwin, Sol. Gen., King & Anderson, and Lewis W. Thomas, for the State.

LITTLE J.

Bush was indicted for the offense of voluntary manslaughter, and found guilty. He made a motion for a new trial, which was refused, and he excepted.

1. One of the assignments of error is that the court refused to continue the case on the showing made by the accused. This showing was based on the absence of four witnesses. It does not satisfactorily appear by the evidence submitted on the motion to continue that two of the witnesses had been subpoenaed. The other two had, and at the conclusion of the evidence on the motion the court stated that he refused the motion as to the two witnesses who it appeared had not been subpoenaed; that the other two witnesses--Spooner and Thompson--had been sent for by the court, and that, if they should be brought in after the case had been ruled to trial he would allow them to be sworn at any time; that, if they did not come, a motion from the defendant, even after the case had gone to trial, to continue it on account of their absence, would be entertained. Before the consideration of the case was concluded, the witness Spooner was brought into court and sworn. The officer who had been sent for Thompson returned, and stated that he could not be found. No further motion was made by counsel for defendant to continue on the ground of the absence of Thompson, and without any further reference to the question of continuance the case proceeded to verdict. It must be conceded that the action of the court in conditionally refusing the motion to continue was irregular. Very much the better practice would have been to have postponed the trial of the case until the two witnesses Spooner and Thompson had been sent for, and, failing to respond, the judge should have then passed absolutely upon the motion submitted. It was not shown that the other two witnesses had been subpoenaed, and, of course, there should not have been any continuance on account of their absence. When the judge, in response to the motion for the absence of the two subpoenaed witnesses, stated that he would send for the witnesses, and, if they were not brought into court, that he would then entertain a motion from the defendant to continue, it was such an intimation that he would continue the case unless he was able to procure the attendance of the witnesses, as required the counsel, when it was ascertained that Thompson could not be found, to renew the motion for continuance, if they desired it. No further suggestion in relation to continuance was made by the defendant's counsel. It must therefore be assumed that if, under the circumstances stated, the motion had been renewed, the court would have continued the case, and that the judge was justified in supposing, in the absence of any renewal of the motion, that the defendant was satisfied to proceed, having procured the testimony of one of the witnesses. While this manner of passing on a motion to continue is irregular and unsatisfactory, it does not afford any ground for a reversal of the judgment.

2. It is further complained that the court sustained an objection to a question propounded in the following form: "Mr. Corbett [deceased] was a man of violent disposition, wasn't he?" We suppose that this question was intended to elicit information that the deceased bore the character of being a man of a violent disposition. There are several objections to the question as propounded. One sufficient one is that it was not in proper and legal form. For aught that appears in this ground, the witness had not testified that he knew the character of the deceased, nor does the ground of the motion state what answer the witness would have made to a proper question on this subject. Under these circumstances, the court committed no error in refusing to admit the evidence. See Powell v. State, 101 Ga. 9, 29 S.E. 309.

3. It is complained in another ground of the motion that the court committed error in admitting as evidence to the jury certain statements made by the deceased, and offered as dying declarations. These statements were that at the school house Bush had cursed him for a G___d d___ son of a b___h, and told him that he was going to kill him. To the admission of this evidence defendant objected on the ground that dying declarations could only be admitted to prove who...