Dumas v. The State Of Ga.

• Decision Date: 31 August 1878
• Citation: 62 Ga. 59
• Parties: Dumas. v. The State of Georgia.
• Court: Georgia Supreme Court

62 Ga. 59

Dumas. v. The State of Georgia.

Supreme Court of the State of Georgia

(August Term, 1878.)

Criminal law. Jury. Evidence. Venue. Before Judge Hall. Pike Superior Court. April Term, 1878.

Dumas was placed on trial for the murder of Ballard alleged to have been committed on the 1st of November, 1877. He pleaded not guilty. The indictment also charged one Childs with the same offense.

*The evidence made, in substance, the following case:

On the afternoon of October 30, Dumas and Childs were seenin Barnesville in company with each other. They remained there until the afternoon of November 2d, most of the time about a bar room, doing nothing in particular, and making weak efforts to obtain work. On the afternoon above mentioned, Ballard paid a bill in the bar-room, and in doing so pulled out a roll of money which these men probably saw. They bought some cartridges for a pistol, and a pack of cards. The defendant west out of Barnesville, on the same evening with Ballard, in his wagon. Childs, or some one greatly resembling him, was seen on the road from Barnesville to Ze-bulon, some distance from the former place, waiting at a branch. This was the road being traversed by the wagon containing Ballard and defendant, at a point not yet reached by them.

At about seven o'clock of the same evening, Ballard entered the house of one Jerry Leak, took a chair and and sat down by the fire. He had been shot in the back of the head. After remaining thus for a few minutes he raised his hands to his forehead and said his skull was about to burst open. He then commenced learning over in the chair, when Leak laid him down on a pallet. He was in the chair about fifteen minutes. He spoke while siting up, but not after he began to lean over. He died the next morning. He lived about two miles from Leak's house.

Here it was proposed to pot in evidence the declaration of the deceased as to who shot him, etc. Defendant's counsel objected upon the ground that it bad not been shown that deceased, at the time of making the declarations, was conscious that he was in articulo mortis. The court admitted the evidence, stating that it would give to the jury proper instructions about weighing and considering it.

Whilst seated in the chair he stated to Leak that two darkies shot him; that they got in the wagon, rode some distance with him, shot him and jumped out. His wagon was *standing at Leak's gate. He was shot on the road from Barnesville to Zebulon, between four and five miles from the former place. Barnesville and Zebulon were both in Pike county, as was also the house in which deceased died. This house was some two hundred yards from where he was shot. But one shot was heard. The person of deceased was not robbed. Forty seven dollars were found on his body. The defendant, in his statement, admitted being present at the shooting, but asserted that Childs fired the fatal shot without any connivance an bis part. He and Childs were seen in Barnesville together alter the homicide, during the same night. The former left after the sea was up.

Much evidence was introduced as to the size of the bullet used, the cartridges purchased, the track made, etc., not material here.

The jury found the defendant guilty. He moved for a new trial upon the following grounds:

1. Because the court erred in overruling the objection to the testimony of Leak, so far as it covered the declarations of the deceased as to who shot him, etc.

2. Because the court erred in declaring Lester, one of the jurors put upon defendant, competent, when it was admitted that he was a nephew of Barrett, who, though not on the indictment as prosecutor, had, as county commissioner, voted and concurred in the appropriation of county funds to pay a reward for the apprehension of defendant, and also aided in employing counsel to prosecute, and in the preparation of the prosecution.

As to this ground, the judge certified that the juror swore he did not know Barrett had taken any interest in the matter, Also, that the only interest which the evidence disclosed that Barrett had taken was in his official capacity as county commissioner.

3. Because the court erred in charging as follows: "The state must establish the place of venue, and fix the place where the crime was committed, as well as the fact that the *crime was committed. The state must establish the venue beyond all reasonable doubt, as well as show the killing beyond all reasonable doubt. It is not necessary that the fact be established by direct evidence, it may be established by circumstantial evidence."

4th. Because the court erred in charging that "when I said the killing I don't mean the place where the deceased died. If the place where he died in the same county as the place where he received the injury of which he died, then the proof of the place where he died is sufficient to establish the fact."

5th. Because the court erred in charging that "the state has offered to give in evidence the dying declaration of Ballard, and I have allowed that statement by witness to be made to you as to the alleged dying declarations. Though I have allowed the proof to go to you, it is for you to determine whether you will receive it and treat it as evidence or reject it. If the court is satisfied prima facie that the deceased is in extremis and conscious of his condition, it will allow the dying declarations to go to the jury. The jury will look to the evidence to see if the person making them was in extremis at the time and was conscious of his condition. If the jury believe the fact that the person was in extremis, and conscious of his condition, then they may consider the dying declarations as evidence."

6th. Because the court erred in charging that "the fact of consciousness of his condition may be shown by circumstances or by expressions made by deceased himself. You can take one or the other, or both together, and determine whether he was in extremis at the time the alleged declarations were made."

7th. Because the court erred in charging as follows: "Confessions may be direct or circumstantial evidence. If the defendant has admitted in open court that he was present at the time Ballard was killed, then such admission or confession would be...