Miles v. State

• Decision Date: 20 February 1936
• Docket Number: 10855.
• Parties: MILES v. STATE.
• Court: Georgia Supreme Court

185 S.E. 286

182 Ga. 75

MILES v. STATE.

No. 10855.

Supreme Court of Georgia

February 20, 1936

Rehearing Denied March 24, 1936.

Syllabus by the Court.

1. The objections to testimony as to a statement made by the deceased several days after he was shot were properly overruled by the court. The testimony was admissible as evidence of the dying declarations of the deceased. It was a question for the jury whether the statement was made in the article of death, though the deceased lingered before dying for 33 or 34 days.

2. Failure to charge the jury upon the subject of dying declarations or of confessions is not error in the absence of a timely written request.

3. The evidence objected to in ground 3 of the motion was not subject to the objections urged.

4. Ground 4, alleging that the court erred in failing to give in charge the law of manslaughter, presents no question for decision, as it fails to point out whether the court should have charged on the subject of voluntary or involuntary manslaughter.

5. There was sufficient evidence to authorize the jury to find that the venue of the crime was as laid in the indictment.

6. The evidence was sufficient to support the verdict.

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

F. M Miles was convicted of murder, and he brings error.

Affirmed.

RUSSELL C.J., and ATKINSON, J., dissenting.

Paul H Field and L. T. Mann, both of Dalton, for plaintiff in error.

John C Mitchell, Sol. Gen., of Dalton, & M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.

BECK Presiding Justice.

F. M. Miles was indicted for the murder of Harrison Henson. The jury found him guilty, without a recommendation. He made a motion for new trial, which was overruled, and he excepted.

The original motion consists of the general grounds. The defendant filed an amendment to his motion, and the references here are to the special grounds as numbered in the amendment.

1. The first ground is based on alleged error in overruling the objections of the movant to the following evidence of Jim Henson, a brother of the deceased: "He said he thought he was going to die. He told me how this occurred. He said he didn't know why the boys wanted to do that way, there wasn't a word of warning given, that he didn't have any warning, and the first warning he had was a lick from behind him, and it knocked him down, and he was knocked unconscious for a little while; he said he didn't know how long that was, and when he come to himself he grabbed his hat and started to run, and one of them said something to the other one, and he couldn't understand what it was, and he looked back over his shoulder and Miles was running up behind him with the gun, and he begged him not to shoot him, and he shot him anyway, and that was the last he remembered about it. He said there wasn't any words of warning any way at all." The witness had testified that this declaration was made 7 or 8 days after the shooting occurred; and that the declarant lived 33 or 34 days after that. The objection to the testimony just quoted was that "it is hearsay, out of the presence of the defendant, and not in the article of death." The court did not err in admitting this evidence. It was a question for the jury whether the deceased was in the article of death and conscious of his condition. Battle v. State, 92 Ga. 465 (2), 17 S.E. 861; Johnson v. State, 169 Ga. 814 (3), 152 S.E. 76; 30 C.J. 255, § 498, note.

2. Ground 2 complains that the court erred in failing to give in charge to the jury the law concerning dying declarations. This exception is without merit. In the first place, the movant fails to show what particular law in regard to dying declarations the court should have included in his instructions. In the next place, there was no request to charge on the subject. In the absence of a proper request in writing, the omission so to charge is not error. And besides, this ground does not point out what particular part of the law in reference to dying declarations that the court should have given. See Smith v. State, 125 Ga. 300, 54 S.E. 124; Troup v. State, 150 Ga. 633, 104 S.E. 421; Williams v. State, 176 Ga. 372, 168 S.E. 5. This ruling also applies to the assignment in another ground based on the court's failure to charge on the law of confessions.

3. In ground 3, error is assigned on the failure of the court to exclude the following evidence for the State: "Q. As to where he pointed out Henson, as to where he claimed Armstrong shot him, would it have been possible for Armstrong to have shot Henson? A. I don't think I understand. * * * I told this boy then, I says, 'If Armstrong was over there, I don't see how Armstrong could have shot Henson, where he was, if he was shot on the other side of the head, and going in his head...