Shirley v. State , 168 Ga. 344 ( 1929 )

Atkinson, J.

Daniel Shirley was placed on trial for the murder of William Simmons by shooting him with a pistol. The defendant was convicted, and in the verdict was recommended to the mercy of the court. The exception is to a judgment overruling his motion for a new trial.

The court admitted, over the objection that it was hearsay, a declaration of the deceased, uttered about ten o’clock Saturday morning before the body was found, on the following Monday: “Pap, I have got to go off and help Daniel Shirley grind some malt.” The declarant and Shirley [defendant] had engaged in a conversation, after which Shirley left going in a direction which would lead to a still. The declaration was made about thirty minutes after Shirley left, and upon making the declaration the declarant left, going in .the same direction Shirley had gone. That was the last seen of the declarant in life. His body was found near the still. In the body were two holes made by pistol bullets that caused death. The only issue upon which the declaration would be material was that of identity of the defendant as perpetrator of the crime. Hpon this issue the declaration was very 'material. In connection with other evidence the declaration tended to explain conduct of the deceased in going in the direction the defendant had recently gone, and his presence at the place where his body was subsequently found, and his purpose in being there.

In Thomas v. State, 67 Ga. 460, the third syllabus is as follows: “On a trial for murder it appeared that the defendant and deceased were living together as husband and wife; that the deceased was jealous of his attentions to another woman, and had quarreled with him about the latter; that on the night of the homicide she left her house, saying, as she went: ‘There are two persons down the alley; I think it is Harp [defendant] and his sweetheart; I will go and see;’ that she went, but never returned; and that the next day she was found murdered near where she expected to find defendant: Held, that such statements by her were admissible as part of the res gestee.” It is declared in the Penal Code (1910), § 1023: “When, in a legal investigation, information, conversations, letters and replies, and similar evidence, are facts to explain conduct and ascertain motives, they are admitted in evidence, not as hearsay, but as original evidence.” In State v. Pearce, 87 Kan. 457 (124 Pac. 814, Ann. Cas. 1913E, 358), it was held: “The declarations of a person who started from home with a herd of horses, as to the place to which he was going and the purpose of his journey, are admissible in evidence; and in a prosecution for the murder of the one who made such declarations, testimony regarding them may be given by the wife of the deceased.” This ruling was upon the principle, as stated in the opinion, that “Statements of one starting on a journey as to where he came from and where he is going are, ordinarily,, admissible in evidence as a part of the res gestae” In Ann. Cas. 1913E, 361, is an elaborate note relating to the principle stated. In this case it can not be definitely stated how long before the homicide the utterance was made; but the declaration was admissible, under the above quoted code section, to explain the conduct and purpose of the deceased in going to the place where his body was found.

The evidence, though entirely circumstantial, was sufficient to support the verdict.

Judgment affirmed.

All the Justices concur except Russell, 0. J., and Allcinson, J., who dissent.