Robinson v. State

• Decision Date: 25 March 1908
• Citation: 60 S.E. 1005,130 Ga. 361
• Parties: ROBINSON . v. STATE.
• Court: Georgia Supreme Court

60 S.E. 1005

130 Ga. 361

ROBINSON .

v.STATE.

Supreme Court of Georgia.

March 25, 1908.

1. Criminal Law—Writ of Error—Review— Harmless Error—Admission of Evidence.

On the trial of one indicted for murder, where a witness testified that the deceased came up to the place where the accused was sitting, and "walked up coming along going to town, " the words "going to town" were apparently a conclusion of the witness. If he meant that the deceased was going in the direction of town, it was not clearly expressed. But the admission of this evidence alone would not be sufficiently material to require a new trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3137-3143.]

2. Homicide — Evidence — Dying Declarations—Preliminary Evidence.

The evidence of the witness by whom it was sought to show a dying declaration, as set forth in the brief of evidence, is confused, and the question as to whether there was enough to show prima facie that the deceased was conscious that he was in articulo mortis when he made the declaration is left in grave doubt. As the case is to be returned for a new trial on another ground, on the next hearing it can be made more plainly to appear whether, at the time of making the declaration, the declarant was in articulo mortis, and whether at that time he was conscious of his condition. A prima facie case as to those matters is sufficient to carry the statement offered as a dying declaration to the jury, leaving to them the ultimate determination as to whether or not the person making such declaration was in the article of death and realized his condition. But, either from affirmative statement, or from circumstances, or from both, a prima facie case on these points must be made before the declaration will be admitted. See Pen. Code 1895, § 1000; Mitchell v. State, 71 Ga. 148; Findley v. State, 125 Ga. 579, 54 S. E. 106; Bird v. State, 128 Ga. 254, 57 S. E. 320; Jones v. State, 130 Ga. —, 60 S. E. 840.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Homicide, §§ 457-459.]

3. Same—Admissibility.

There was no error in admitting evidence to show that, when the accused was carried to jail, about 15 or 20 minutes after the homicide, he exhibited evidences that he had been drinking.

[Ed. Note.—For eases in point, see Cent. Dig. vol. 26, Homicide, § 381.]

4. Same—Instructions.

Under the evidence in this case there was no error in charging as follows: "So, if a killing be done, if a life be taken, and the party doing the killing is not justified under the law of self-defense, or if there are no circumstances to mitigate the killing, to reduce it to a lower grade of homicide, the killing would be murder." The evidence on behalf of the accused tended to set up self-defense. It did not in volve defense of the wife of the accused against a felonious attack, so as to render the charge quoted objectionable as excluding that as one of the defenses of the accused.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 638-641.]

5. Criminal Law—Error in Instructions Cured by Others Given.

It was error to charge that, when a man is conscious that he is dying or about to die, and has received a fatal wound from which of necessity he must die, and makes statements in view of approaching death, the law presumes that such statements are true; nor was the harmful effect of such error relieved by a recharge, in which the judge informed the jury that he desired to correct the former charge, and instructed them that, if a man is dying or about to die, and has reason to believe that of necessity he must die, and makes a statement in view of approaching death, "the law treats that statement as having the sanctity of truth, and gives it such dignity as allows it to be admitted in evidence to be considered by the jury."

6. Homicide — Dying Declarations—Determination of Admissibility.

There was no error in charging that, in determining whether or not a person who had been shot, and who died shortly thereafter, and whose statement was offered as a dying declaration, was in fact in a dying condition when the statement was made, the jury could consider, along with the other evidence on the subject, the nature and character of the wound and...