Fitzpatrick v. State

• Decision Date: 18 April 1919
• Docket Number: 1135.
• Citation: 99 S.E. 128,149 Ga. 75
• Parties: FITZPATRICK v. STATE.
• Court: Georgia Supreme Court

99 S.E. 128

149 Ga. 75

FITZPATRICK v. STATE.

No. 1135.

Supreme Court of Georgia

April 18, 1919

Syllabus by the Court.

In order for dying declarations to be admissible in evidence in a prosecution for homicide, such declarations must be made by a 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.

(a) The evidence submitted to the court was sufficient to make out a prima facie case that the declarations were made by the deceased in articulo mortis, as to the cause of his death and the person who killed him, and that at the time of making them he was conscious of his condition; and there was no error in submitting them to the jury under proper instructions.

(b) While the charge complained of was not entirely accurate, it is not cause for reversal.

The evidence, considered with the defendant's statement authorized the charge to the jury on the subject of mutual combat; and the charge was not erroneous for any reason assigned.

On the trial of this case the following instruction to the jury was not erroneous: "When a homicide is proven, the presumption is that the killing is murder, and that it is for the evidence to show justification, or to reduce the offense to a lower grade; and it is incumbent on the prisoner to show this to the satisfaction of the jury, unless it is shown from the evidence produced against him."

The evidence authorized a charge on the subject of flight.

Where during the trial of a criminal case evidence was admitted without objection, an omission to charge the jury that the only purpose for which the evidence was admitted was to impeach a witness is not cause for the grant of a new trial where no written request was made that the judge limit the effect of the testimony to that purpose.

In view of the contradictory affidavit of the foreman of the jury which by consent was made a part of the record, the conduct of the juror in separating himself from the jury during the consideration of the case is not cause for reversal.

The other grounds of the motion for new trial, so far as they are sufficient to raise any question for consideration, are not of such character as to require elaboration, and show no cause for reversal.

Atkinson J., dissenting.

Joel T. Fitzpatrick, otherwise known as Blue Bird Fitzpatrick, was convicted of murder. A motion for new trial was denied, and he brings error. Affirmed.

Thomas & Thomas and Thos. J. Shackelford, all of Athens, and Berry T. Moseley, of Danielsville, for plaintiff in error.

A. S. Skelton, Sol. Gen., of Hartwell, Clifford Walker, Atty. Gen., and M. C. Bennet, of Atlanta, for the State.

HILL J.

(after stating the facts as above).

1. Error is assigned in the first special ground of the motion for new trial, because the court admitted in evidence, over objection, the testimony of Dr. W. B. Hardman, the attending physician and surgeon, who testified as to the declarations of the deceased as to the cause of his death and the person who killed him. These declarations were made on several occasions between the first and last visits of Dr. Hardman to the deceased.

The last declaration was made about five or six days before his death. In each of these declarations he said to Dr. Hardman that he could not live. After making an examination of the wounds the witness told the deceased that he was going to die. The deceased said he believed it. The witness said:

"It is very plain you are going to die, and in your present condition there is no hope in the world for you."

Dr. Hardman further testified:

"I did not say 'without an operation.' * * * I said: 'There is no chance for you. Now, if you are willing to take a shot at it, I am; and if this cord [spinal cord] is just being pressed on, instead of cut in two, I might can relieve you, that is, give you some function of your cord; but, if there is no pressure there, I can't do you any good. I want you and your family to understand that.' * * * I did not say I could relieve him; I said the chances were that the function could be relieved. I have operated on them as bad as he was. I told him that after he made the statement. He said he would take a shot at it. As to that meaning that he had some hope, it was to see whether it was pressure or the spine was cut; the X-ray did not show it. That being true, under my opinion, as to his certainly having some hope that I would find pressure there instead of a cut, he was willing to grab at last straw; and so was I, if he was willing. He was still grabbing then and still hoping that I would benefit him; * * * he said it meant death anyway, regardless of operating or whether I did not operate, it was death anyway. He made that statement several times. * * * He was in a dying condition at the time he made that declaration as to who shot him and how it occurred. A man may be in a dying condition and may be saved. He may have a big blood vessel bleeding and be in a dying condition until somebody stopped it. Sometimes a man can be absolutely saved when he was in a dying condition. * * * He told me exactly the position he was in [when shot]. He said he was lying on the bench in the schoolhouse, asleep, and he heard some of the boys disputing about a certain matter, he never told me. He said, 'I heard the boys disputing about a certain matter, and some of them asked me.' He said, 'I kinder waked up and turned over, and some of them asked me what I thought about it, and I told them about what I thought it ought to be.' He said, 'Blue Bird Fitzpatrick then said, "What have you got to do with it, you gray-headed son of a bitch?"' and said, 'I turned over just a little bit, and he shot me.' He said he thought he got up on his elbow kinder, and he shot through the shoulder this way [indicating]. This is all I could get out of him. That is about the statement he made. He told me his condition on that night, whether he was drinking or sober. He said he was sober. He said he had been asleep, but said he was sober. He told me about the time of night that happened. I think he said somewhere about 9 o'clock. He did not tell me anything about how many drinks he had taken."

The objection to the evidence was that it did not disclose that the deceased was in articulo mortis and conscious of his condition at the time of making the declarations; and it is argued that, inasmuch as the deceased, at the time he made the declaration, was willing to submit himself to an operation, he had hope of an operation prolonging or saving his life, and that therefore he was not in the article of death and conscious of being in a dying condition. But it will be seen from the evidence of Dr. Hardman that the deceased always said, before and after the operation, that he would die, and that he was conscious of his condition. Dr. Hardman also testified that in his opinion the declarant was in a dying condition; that he was slowly dying. The evidence discloses that the deceased at the time of the declaration was paralyzed "from the stomach down," and that he was conscious of his condition and made the statement that he could not recover. The attending physician and surgeon had also declared the wound a mortal one. The nature of the wound and the oftrepeated declaration of the deceased that he realized he would die from the effects of the wound made such a prima facie case as to make it proper for such declarations to go to the jury under proper instructions from the court. That death did not ensue immediately after such declarations would not make such statement inadmissible. Dying declarations made on Friday before declarant's death on Wednesday following have been held by this court to be admissible. Bryant v. State, 80 Ga. 272, 4 S.E. 853. In Jackson v. State, 56 Ga. 235, where some of the declarations were made on Friday, and others previously, and the deceased died on Saturday, such declarations were held to be competent. In that case the deceased said, when the statement was made, that he "was certain to die." The real test is in such cases whether the declarations are made by a 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. We think this case comes up to that test. Penal Code, § 1026; Harper v. State, 129 Ga. 770, 59 S.E. 792 (3); Jones v. State, 130 Ga. 274, 276, 60 S.E.

840; Young v. State, 114 Ga. 849, 40 S.E. 1000; Washington v. State, 137 Ga. 218, 221, 73 S.E. 512; Findley v. State, 125 Ga. 579, 54 S.E. 106; Bryant v. State, 80 Ga. 272, 4 S.E. 853.

Error is assigned, in the second ground on the following charge:

"The court has admitted to you evidence of dying declarations of the deceased. I charge you that you should consider such testimony with great caution, and before you should consider the same you should be satisfied that such declarations were conscious utterances in the contemplation and the immediate article of death, and you are to pass finally for yourselves on the question whether or not the declarations were conscious utterances

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