O'Neal v. State

• Decision Date: 13 March 1931
• Docket Number: 8196.
• Citation: 158 S.E. 51,172 Ga. 526
• Parties: O'NEAL v. STATE.
• Court: Georgia Supreme Court

158 S.E. 51

172 Ga. 526

O'NEAL v. STATE.

No. 8196.

Supreme Court of Georgia

March 13, 1931

Syllabus by Editorial Staff.

No precise time can be fixed when resgestæ ends, each case turning on own circumstances (Pen. Code 1910, § 1024).

Testimony concerning statements by deceased that defendant shot him made five or ten minutes after shooting, held properly admitted as res gestæ (Pen. Code 1910, § 1024).

Charge not to consider statements by deceased if not part of res gestæ but product of afterthought, if not technically applicable, was favorable to accused and not harmful.

Charge that statements by deceased should be received with great care held not required where admitted as res gestæ (Pen. Code 1910, § 1024).

Failure to charge that statements by deceased admitted as res gestæ should be received with great care if made by deceased in dying condition was not error.

Testimony that defendant stated he would pay deceased's hospital expenses if there was no lawsuit was not inadmissible as referring to compromise.

Physician testified that defendant was unwilling to aid deceased who was wounded, that he told defendant he wanted to save deceased's life, and that thereby defendant might save a lawsuit and compromise case; that defendant agreed to pay expenses providing no lawsuit was brought.

Where defendant agreed verdict should be murder or acquittal, court did not err in failing to charge on manslaughter.

Error from Superior Court, Laurens County; R. Earl Camp, Judge.

Manning O'Neal was convicted for murder, and he brings error.

Affirmed.

RUSSELL C.J., dissenting.

Dampier & Watson and G. C. Bidgood, all of Dublin, for plaintiff in error.

Fred Kea, Sol. Gen., of Dublin, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

Syllabus OPINION.

GILBERT J.

1. "Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, are admissible in evidence as part of res gestae." Penal Code 1910, § 1024. "No precise point of time can be fixed, a priori, when the res gestae ends. Each case turns on its own circumstances. Indeed, the inquiry is rather into events, than into the precise time which has elapsed." Thornton v. State, 107 Ga. 686, 33 S.E. 673, 674. Under the facts of this case the court did not err in admitting evidence of sayings of the deceased as a part of the res gestæ.

2. Complaint is made that after admitting the evidence of Pearson as shown in the statement following, the court instructed the jury they should not consider the evidence if they were convinced that the declarations were not made as "a part of the res gestæ but as product of afterthought." This instruction, if not technically applicable, was more favorable to the accused than otherwise, and therefore not harmful. Thompson v. State, 166 Ga. 512(11), 143 S.E. 896.

3. Complaint is also made of the failure of the court to give in connection with the charge referred to in the preceding headnote, a charge that the evidence in question "should be received with great care, and weighed with caution," if the jury should believe the statements attributed to the deceased to be true and should believe them to be part of the res gestæ. Such an instruction would be appropriate as applied to dying declarations, but is...