Daniel v. State

• Decision Date: 11 July 1936
• Docket Number: 10971.
• Parties: DANIEL v. STATE.
• Court: Georgia Supreme Court

187 S.E. 36

182 Ga. 875

DANIEL v. STATE.

No. 10971.

Supreme Court of Georgia

July 11, 1936

Error from Superior Court, Fulton County; G.H. Howard, Judge.

Proceeding by the State against Sam Daniel. To review the judgment rendered, defendant brings error.

Affirmed.

RUSSELL C.J., dissenting.

Arthur W. Powell, of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., and J. Walter Le Craw, both of Atlanta M.J. Yeomans, Atty. Gen., B.D. Murphy and Geo. L. Goode Asst. Attys. Gen., and E.J. Clower, of Atlanta, for the State.

Syllabus OPINION.

PER CURIAM.

1. The preliminary evidence was sufficient to admit proof of statements of the deceased as dying declarations. Furthermore, the statements were not prejudicial to the movant, since they did not in any way tend to prove his guilt, showing only that the deceased was killed by Marvin Honea, about which there was no issue, and the complicity of the movant being dependent solely on other evidence.

2. Marvin Honea, who had been previously tried and convicted and was under a sentence, was introduced as a witness for the state, and on cross-examination was asked the following questions: (1) "Are you preparing to meet your God?" (2) "The only people that can save you now from the electric chair is the solicitor-general's office or the Governor of the State of Georgia. Isn't that true?" The court refused to allow the witness to answer these questions, and the movant assigned these rulings as error. It does not appear that any substantial right of the movant was violated, and these assignments do not show cause for a reversal. Code 1933, § 38-1705; City Bank of Macon v. Kent, 57 Ga. 283(16); McCray v. State, 134 Ga. 416(4), 68 S.E. 62, 20 Ann.Cas. 101; Eugee v. State, 159 Ga. 604(5), 126 S.E. 471.

3. The general grounds of the motion for a new trial are not insisted on. The court did not err in overruling the motion.

Judgment affirmed.

All the Justices concur, except RUSSELL, C.J., who dissents.

RUSSELL Chief Justice (dissenting).

As it plainly appears from the motion for new trial that the court had not for itself decided, as a matter of the first instance, that the statements of the declarant were so complete in every essential principle required by law as to constitute a dying declaration, it was error to admit the testimony over the objection that the proof did not establish a dying declaration, and to hold that the testimony offered would be admitted up to that time "for the present," under proper instructions to the jury. If the proof to establish the alleged statements as dying declarations was incomplete, no proper instructions would lawfully have been given which would not have confused and misled the jury as to what was necessary to constitute a dying declaration, with the probability that a jury, with their great regard for solemnity of dying declarations, would have been led to believe that the statements of the declarant represented the truth of the case.

In ground 3 of the motion it is alleged that the court erred in failing to rule out the testimony of Dr. Hulsey relating to conversations of the deceased, at the conclusion of the cross-examination of the witness, upon the objection then and there made by counsel for the defendant as follows: "By Mr. Powell, I renew my objection on the ground that it is not a dying declaration. He had been told that he had a chance to live." The court overruled the objection, and said to the jury: "Gentlemen, certain principles of law are applicable to this testimony. The court will leave it to you in the final instructions whether or not this was a dying declaration under principles of law, to be given." It is my opinion that the court erred in overruling this ground. While the objection based on the ground that the testimony of Dr. John M. Hulsey, Jr., was not a dying declaration, could have been more fully stated, enough was stated to show that the plaintiff in error was insisting that the evidence of Dr. Hulsey did not evidence a dying declaration, or at least that it might not be sufficient for this purpose because the decedent had been told that he had a chance to live. But the court certainly erred in stating, as a principle of law, that he would leave it to the jury whether the testimony was a dying declaration. The point is analogous to the ruling as to whether a confession is freely and voluntarily made so as to be properly admissible, and as to this it has been uniformly held by this court that the trial judge must not admit alleged proof of an alleged confession until he has established in his own mind, without regard to the jury, that there is evidence at least establishing prima facie that the alleged confession was made without the slightest fear of injury or slightest hope of favor. So, for the same reason, to admit statements from an injured person, who afterwards dies, the rule has always been inflexible that dying declarations at best are hearsay evidence, admitted from the necessity of the case to establish the identity of the assailant, and only then when the declarant is in articulo mortis--in extremis;--when the declarant is conscious of the rapid approach of death, and the solemnity of the occasion is sufficient to be taken as a substitute for an oath, which otherwise the witness would be required to take. In the case at bar the necessity for the introduction of the dying declarations does not appear, when it appears from the record that more than one witness saw the shot fired and the deceased fall, and that the killing was utterly without provocation.

In Mitchell v. State, 71 Ga. 128(2) it was held "Dying declarations constitute one of the exceptions to the rule which rejects hearsay evidence. Their admission is founded on the necessity of the case and the reason that, being made in view of impending death and judgment, when the hope of life is extinct and the retributions of eternity are at hand, they stand upon the same plane of solemnity as statements made under oath. They are admissible only when made by a person in the article of death who is conscious of his condition, and then only in cases of prosecutions for homicide, and for the sole purpose of showing the cause of death and the person who committed the act; and great caution is necessary, not only in the admission, but in the use of this kind of testimony. (a.) The case at bar falls short of the requirements necessary to make dying declarations available. (b.) The court must judge of the preliminary evidence in the first instance. If he deems it prima facie sufficient, he should admit the declarations, instructing the jury afterwards to pass finally for themselves on the question, whether or not the declarations were conscious utterances in the apprehension and immediate prospect of death." In the case at bar I am of the opinion that the learned trial judge erred in admitting the testimony of Dr. Hulsey without evidence that the declarant, at the time he made the statement, was himself conscious that he was in the article of death and that all hope of recovery had fled. In delivering the opinion of the court in the Mitchell Case, supra, Mr. justice Hall said: "The first of these exceptions demanding our examination and careful consideration are those which relate to dying declarations. In Campbell's Case, 11 Ga. [353] 374, 375, it is said that this species of testimony constitutes one of the exceptions to the rule which rejects hearsay evidence; it is founded on the necessity of the case, and for the reason that the sanction under which these declarations are made, in view of impending death and judgment, when the last hope of life is extinct, and when the retributions of eternity are at hand, is of equal solemnity as that of statements made under oath. 'Still,' it is added, 'it must be admitted that great caution should be observed in the use of this kind of evidence.' By the Code, § 3781 [Code 1933, § 38-307], dying declarations are admissible only when made by a person in the article of death, and who is conscious of his condition, and then only in the case of prosecutions for homicide, and for the sole purpose of showing the cause of death and the person who committed the act. The...