Thomas v. State
| Decision Date | 18 May 1920 |
| Docket Number | 1570. |
| Parties | THOMAS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
On the trial of one indicted for murder, where the court after a preliminary hearing admits in evidence dying declarations offered by the state, the failure to instruct the jury as to their consideration of that character of evidence is not cause for a new trial, where the state does not rely for conviction solely on dying declarations, and where there is no appropriate and timely written request for instructions as to them.
It was not error in this case for the court, after the instructions given on the subject, to fail to further charge as follows "In order to convict one as the principal in the second degree, it is necessary to prove the guilt of the principal in the first degree."
The instruction as to the credit to be given a successfully impeached witness, upon which error is assigned, is not, when considered in view of the whole charge, and the connection in which it was given, cause for a new trial.
Failure to instruct the jury on the subject of impeachment of a witness, as set forth in grounds four and five of the motion is not cause for a new trial; there being no request for such instructions.
The evidence authorized the verdict, and the court did not err in refusing a new trial.
Error from Superior Court, Montgomery County; P. W. Meldrim, Judge.
Berry Thomas and Dink Thomas were jointly indicted for murder; and Berry Thomas alone was put on trial and was convicted as charged, his motion for a new trial was overruled, and he brings error. Affirmed.
A. C Saffold, of Vidalia, and Eschol Graham, of McRae, for plaintiff in error.
W. A. Wooten, Sol. Gen., of Eastman, Clifford Walker, Atty. Gen., and M. C. Bennet, of Atlanta, for the State.
Berry Thomas and Dink Thomas were jointly indicted for murder, in the only count in the indictment. Neither was charged as principal in the second degree. Berry Thomas alone was put on trial, and was convicted as charged, with recommendation to life imprisonment. His motion for a new trial having been overruled, he excepted.
1. Complaint is made in the motion for a new trial that the court erred "in failing to charge the jury substantially as follows: Dying declarations, made by any 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, are admissible in evidence in a prosecution for the homicide." And as follows:
No request was made to give such instructions, nor did the state rely for a conviction on dying declarations alone, but introduced witnesses who claimed to have seen the commission of the homicide, and whose testimony, if the jury believed it, authorized them to find the accused on trial guilty of murder.
The language first quoted is embraced in the Penal Code (1910), § 1026, and that last quoted is in substantial accord with a number of decisions of this court on the subject of dying declarations. The judge, upon a preliminary hearing, concluded that the evidence was prima facie admissible which tended to show that the deceased made declarations as to the cause of his death, and the person who killed him, and that at the time he made them he was in the article of death and was conscious of his condition. Such evidence was then admitted, and of course there was no reason for informing the jury that it was admissible. There is no statute requiring the court to charge the jury as to dying declarations when evidence as to them has been admitted; nor has this court ever held that the judge is bound to instruct the jury on the subject of dying declarations, in the absence of a timely and appropriate written request to do so. It has, however, held in a number of cases, where there was evidence tending to show confessions of guilt by the accused, that it was not cause for a new trial for the judge to fail, in the absence of a timely and appropriate written request, to instruct the jury on the subject of confessions. Among the cases in which such ruling was made are Nail v. State, 125 Ga. 234, 54 S.E. 145; Pierce v. State, 132 Ga. 27, 63 S.E. 792; Cantrell v. State, 141 Ga. 98, 80 S.E. 649; White v. State, 141 Ga. 526, 81 S.E. 440. In Nobles v. State, 98 Ga. 73, 26 S.E. 64, 38 L.R.A. 577, it was held, where the charge of the court upon the subject of confessions was in all other respects full and fair, that a mere failure to charge that they should be received with caution and scanned with care was not, in the absence of a request to charge to that effect, cause for a new trial, though it would have been better practice to have done so. In Lucas v. State, 110 Ga. 756, 36 S.E. 87, it was held:
"The failure in the present case * * * to instruct the jury that 'a confession alone, uncorroborated by other evidence, will not justify a conviction,' is cause for a new trial."
There the charge on the subject of confessions, the court said, was full and accurate save only that there was an entire failure to inform the jury that an uncorroborated confession was not of itself sufficient in law to warrant a conviction. It was said further that, as the court undertook to instruct the jury on the law relating to confessions, the failure to mention the rule as to the necessity that they be corroborated probably impressed them with the idea that they could convict on the confessions alone. Moreover the court said:
"The case, at best, is close and doubtful, and it is by no means clear that the evidence warranted" the verdict.
The Penal Code (1910), § 1031, declares:
And section 1032 is:
"To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury."
There are decisions to the effect that the admissibility of evidence as to confessions is determined primarily by the court, but its judgment is not conclusive, and the jury must at last determine whether any confessions were made, and, if so, whether they were freely and voluntarily made without the slightest hope of benefit or the remotest fear of injury. Price v. State, 114 Ga. 855, 40 S.E. 1015 (3), (4), and cases cited. A similar rule is applicable to the admission of evidence tending to show dying declarations; that is, that the court passes primarily on the question as to whether they are prima facie admissible, and if held to be so, and they are admitted, it is for the jury to finally pass on the question whether or not the declarant was in articulo mortis, and at the time was conscious of his condition. Hawkins v. State, 141 Ga. 212, 80 S.E. 711, and cases cited.
It appears, therefore, that there is as much reason for requiring an instruction to the jury on the subject of confessions, where the evidence authorizes it, as there is for instructing them as to the law of dying declarations where the court has admitted them. And since it is not cause for a new trial that the court, in the absence of a timely and appropriate written request, fails to give the jury the law as to confessions, we feel constrained to hold that such failure to instruct the jury as to dying declarations is not cause for a new trial, although we think the better practice is to instruct in such cases, without request to do so. There are a number of cases where the court, in passing upon the admissibility of alleged dying declarations, said in effect that the evidence was admissible "under proper instructions to the jury." Nesbit v. State, 43 Ga. 238; Dumas v. State, 62 Ga. 58; Mitchell v State, 71 Ga. 128; Young v. State, 114 Ga. 849, 40 S.E. 1000; Anderson v. State, 122 Ga. 161, 50 S.E. 46; Jones v. State, 130 Ga. 274, 60 S.E. 840; Lyens v. State, 133 Ga. 588, 66 S.E. 792; Perdue v. State, 135 Ga. 277, 69 S.E. 184; Hawkins v. State, 141 Ga. 212, 80 S.E. 711. In not one of these cases, however, was the question involved as to whether the court was bound, in the absence of an appropriate and timely written request, to instruct the jury on the subject of dying declarations. It is not a general rule that the admissibility of evidence is dependent upon an instruction to be subsequently given in relation thereto. And we do not understand why the admissibility of evidence as to dying declarations should be dependent upon proper instructions to be given the jury on the subject. The judge passes primarily upon the admissibility of evidence tending to show that the declarant, while in the article of death and conscious of his condition, stated "the cause of his death and the person who killed him," and if, in his opinion, the evidence be prima facie admissible, it is thereupon admitted without regard to any instructions the judge may subsequently give in relation to it; but the jury finally passes on the question whether or not the declarant was in articulo mortis when he made the declarations, and was then conscious of his condition, and considers all the evidence as to the alleged dying...
To continue reading
Request your trial
-
Thomas v. State
...150 Ga. 269103 S.E. 244THOMAS.v.STATE.(No. 1570.)Supreme Court of Georgia.May 18, 1920.(Syllabus by the Court.) Error from Superior Court, Montgomery County; P. W. Meldrim, Judge. Berry Thomas and Dink Thomas were jointly indicted for murder; and Berry Thomas alone was put on trial and was ......