Findley v. State
| Decision Date | 16 May 1906 |
| Parties | FINDLEY. v. STATE. |
| Court | Georgia Supreme Court |
A prima facie case is all that is necessary to carry dying declarations to the jury. When this has been made out, the declarations are admitted, and the ultimate determination as to whether or not the persons making them was in articulo mortis and realized that death was pending is for the jury.
[Ed. Note.—For cases in point, see vol. 26, Cent. Dig Homicide, §§ 457-159.]
The charge of the court complained of on the subject of dying declarations and when they may be considered by the jury was not subject to the objection made to it.
Under the facts of this case the court erred in not giving in charge the law of mutual combat, or mutual intent to fight.
While mere words, threats, menaces, or contemptuous gestures will not constitute "equivalent circumstances, " within the meaning of section 65 of the Penal Code of 1895, which will reduce murder to manslaughter, yet what circumstances will present this equivalence and justify the excitement of passion, and exclude all idea of deliberation or malice, the law does not specifically declare. It furnishes a standard, and leaves the jury in each case to make the comparison and determine whether the special facts of the case before them come up to that standard or not. There was, therefore, no error in omitting to charge that certain acts other than those referred to in the Penal Code would constitute "equivalent circumstances."
(Syllabus by the Court.)
Error from Superior Court, Greene County; H. G. Lewis, Judge.
Eli Findley was convicted of murder, and brings error. Reversed.
Findley was indicted for the offense of murder, alleged to have been committed upon James Bradshaw with a pistol. The evidence showed in brief as follows: The accused went to a house on the place of the deceased and caught his (the defendant's) son, a boy about 15 years old, who was there, by the collar, and told him to come on home, and asked him why he hadn't been home. The deceased told the accused that he had hired the boy, and he did not "reckon" the latter would go unless the accused got him by law. The accused said he "reckoned" he would, and that the law didn't have anything to do with his son; that he thought he had a right to carry him. The deceased replied that the accused would have to go to law before he could get the boy. He struck the accused with his fist. A person who was present advised the accused to turn the boy loose. The accused said: The deceased replied that he had better go, and the accused said, "I am going." The deceased struck him again, and he went on. The deceased acted as if he were going to get a rock from the ground, but the witness caught hold of him and advised him not to do it. The accused told the deceased that if he (the deceased) would come out into the road he (the accused) would kill him. The deceased asked a person near by to lend him a gun, but he did not get it. The accused said: "If you come out here in the road I will kill you." A witness narrated these facts; then added: "And the last word I heard Mr. Bradshaw [the deceased] say was, 'I am not going to, ' and about that time the pistol began to shoot" When the deceased made this statement "he had not got to the road." In another part of his testimony the witness said that it was not more than two or three minutes from the time the deceased struck the accused the second time until the latter commenced shooting. "Immediately after Mr. Bradshaw said 'I am not coming there' the shooting began." When the accused made the statement as to the deceased coming out in the road, the witness supposed he meant the big road. The deceased did not have to go out into that road to reach his house. The accused did have to get into it to reach his house. The witness also thought that the accused and the deceased were both in the road leading from the house of the deceased to the public road. The accused shot once; then waited a second; then shot four or five times. He then left. Later in the night he returned to the place where the deceased was lying, but not then dead. A witness heard the deceased say: "There is no need of that, Uncle Eli." The accused answered: The deceased was on the edge of the public road when he was killed. At another time the same witness said that the deceased was in the public road when he was killed. He was going to-wards the defendant's house. In describing the wounds found upon him, the witness said: On redirect examination the witness said that when the accused said, "If you come out in the road I will kill you, " the deceased said, "That is all right, you can kill me if you want to, " and the accused went on. When he had gone a short distance he said: The witness added: "About that time Mr. Bradshaw got about even with my brothers." It was then he called for a gun, but did not get it. He was shot on Wednesday night, and died the following Friday. The doctor came to dress his wounds about 10 or 11 o'clock Friday morning. When the shooting began, the parties were about 10 or 15 feet apart. The accused lived about 600 yards distant from the place where the homicide occurred, and not on the property of the deceased. On Thursday the deceased stated that he had been shot, and was going to die. He said that the accused had shot him for nothing. The same witness added that the deceased told him that the accused came back with his gun and said that he had come to finish the deceased, and the latter begged him not to do so. The defendant introduced no evidence, but made a statement.
The jury found the defendant guilty of murder. * He moved for a new trial on the following, in addition to the general grounds: (1) Because the court admitted evidence of the dying declaration of the deceased. This evidence was objected to on several grounds, which made substantially the points that it did not appear that the declarations were made while the declarant was in a dying condition or was conscious of the fact, or of impending death, or that the fear of death, if any, continued after the declarations were made until the time of death, and that the hope of life did not return after such declarations were made. (2) Because the court charged as follows: ...
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