Hawkins v. State

• Decision Date: 13 January 1914
• Citation: 80 S.E. 711,141 Ga. 212
• Parties: HAWKINS v. STATE.
• Court: Georgia Supreme Court

80 S.E. 711

141 Ga. 212

HAWKINS v. STATE.

Supreme Court of Georgia

January 13, 1914

Syllabus by the Court.

There was ample evidence to authorize the verdict of guilty.

The motion for new trial complains that the court failed to charge the law of voluntary manslaughter, mutual combat, and self-defense. No appropriate request in writing was made, and there was no basis for such charge except in the statement of the accused. This court has repeatedly ruled that the trial judge is not bound to give in charge to the jury the law relating to a given question which is not raised by the evidence, but only by the statement of the accused, even though it be pertinent, unless an appropriate request therefor is submitted in writing. Carroll v. State, 99 Ga. 36 (2), 25 S.E. 680; Hardin v. State, 107 Ga 718 (3), 33 S.E. 700; Robinson v. State, 114 Ga. 56 (4), 39 S.E. 862. Besides, the court charged the jury fully the law of self-defense as relating to the fears of a reasonable man.

In order to admit dying declarations for the consideration of the jury, it is necessary to make out a prima facie case showing that the deceased was in articulo mortis, and conscious of his condition. When this is done, the declarations should be admitted, and whether the person making them was in articulo mortis, and was conscious of his condition, are questions of fact for the jury to determine under proper instructions from the court. Findley v State, 125 Ga. 579, 54 S.E. 106. See, also, Anderson v. State, 122 Ga. 161, 50 S.E. 46; Gibbons v State, 137 Ga. 786, 789, 74 S.E. 549; Perdue v. State, 135 Ga. 277 (8), 69 S.E. 184; Lyens v. State, 133 Ga. 587 (3), 66 S.E. 792. Accordingly, where a witness for the state testified that the deceased, after being shot, and a short while before he died, "asked me to feel his pulse, and said, 'Mr. Gene, tell me the truth.' He had been saying he was shot mighty bad, and I said, 'Well, Pig [the deceased], maybe you are not shot as bad as you think you are; the doctor is coming.' And he said, 'No; I am shot in a bad place.' And then he had me to feel his pulse, and held out his hand. He said, 'Tell me honest, Mr. Gene,' how his pulse was. I said, 'Well, they are about normal--maybe you are not shot as bad as you think.' He said, 'No, sir; they are not all right; they are weak.' And he said, 'I am bleeding inside.' He told them good-by once or twice. He thought he was going to die, I guess. He died that night some time, about 3 o'clock next morning"--and upon this showing the court allowed the witness, over objection of defendant's counsel, to testify as to what the deceased said to the witness as to the circumstances under which the defendant shot deceased, this made out such a prima facie case as to authorize the testimony to be submitted to the jury, under proper instructions from the court as to whether the declarations were made in the article of death, and whether the deceased was at the time conscious of his condition.

In admitting dying declarations of the deceased for the consideration of the jury, laudatory remarks by the deceased of himself, such as, "You know I always do what the white folks told me," should not be admitted; but under the facts of this case the admission of this language is not of sufficient materiality to be cause for a new trial. Dying declarations should be limited to the cause of the death of the declarant and the person who killed him. Penal Code 1910,...