Gibbons v. State , 1912 Ga. LEXIS 149 ( 1912 )

Buck, <7.

(After stating the foregoing facts.)

1. Sufficient foundation was laid for the admission, as a dying declaration, of the decedent’s statement that the accused “shot her because she asked him for a match.” “A prima facie case is all that is necessary to carry dying declarations to a jury. When this has been made out, the declarations are admitted, and the ultimate determination as to whether or not the person making them was in articulo mortis and realized that death was impending is for the jury.” Findley v. State, 125 Ga. 579 (54 S. E. 106).

2. The second ground of the motion for a new trial is as follows: “Because the following material evidence offered by the movant was illegally withheld from the jury against the demand of the movant, to wit: Movant offered to prove by the witness Sarah Henidns that the defendant found the deceased at the frolic house just previous to the fatal shot, in a drunken condition; that he got her a chair, took her to the window, took care of her, and took her down to the house where the shooting occurred, in a drunken condition. When this testimony was offered, the court was then and there informed as to what the witness would testify; and the court ruled as follows on the admission of this evidence: ‘I will sustain the objection only as to what the defendant told this witness after the shooting.’ ” The real meaning of the complaint against the court’s ruling is somewhat obscure, because, in the evidence set forth in this particular ground of the motion, there is no reference to anything that was said by the defendant after the shooting, and yet the court’s ruling is that objection to the testimony was sustained “only as to what the defendant told this witness after the shooting.” We might dismiss this ground without further consideration, and with the mere statement that it appears that all of the evidence offered was admitted. And this appears to be the fact, after examination of the brief of the evidence. But we take it, that, in connection with the testimony set forth in the motion, the defense offered to prove certain sayings of the defendant, made to the witness after the shooting, and that the evidence in regard to the sayings of the defendant was excluded. Clearly the court was right in excluding anything that might have been said by the defendant after the act, it not being contended that these sayings were in the nature of res gestae.

3. The court did not err in refusing to permit a witness for the defendant to testify that “immediately after the shooting took place the defendant went to the husband of the deceased and called him down to the scene of the shooting.” Lingerfelt v. State, 125 Ga. 4 (53 S. E. 803).

4. Under the evidence the jury could only have found either that the defendant did not fire the fatal shot or that the killing was unprovoked murder. The plaintiff in error insists that he 'was entitled to a charge upon the subject of involuntary manslaughter, and complains that the court nowhere in his instructions to the jury gave the law of involuntary manslaughter in charge. There was no evidence authorizing such a charge. There was no sugges-' tion that the shooting was unintentional in the commission of an unlawful act, or of a lawful act without due caution and circumspection; and the court very properly refused to give instructions to the jury which would have authorized them to indulge in pure 'conjecture.

Judgment affirmed.

All the Justices concur.