Wooten v. Wilkins , 39 Ga. 223 ( 1869 )

McCay, J.

We will not disturb the verdict in this case. There may be some reason from the testimony to think that the defendant is the guilty party, but, as we have had occasion frequently of late, to remark, this Court is no jury, nor does it have jurisdiction over questions of facts decided by a jury, unless that decision be so manifestly wrong as to make it illegal. This is not such a case, the testimony is not decided and clear either way, and the jury might well have found as they did.

1. Our brother Irwin, who argued this case, took a deep interest, as was right, in seeking the punishment of one, who, as he thinks, had wronged his servant; but the jury have not considered his evidence strong enough to authorize a verdict for him, and, with the proof as it is, we cannot help him. The province of the jury is to decide upon the facts, and unless there be evident mistake, passion or prejudice,so as to satisfy us that the jury have misused the power placed in their hands, we will not misuse the power placed in our hands to disturb their finding.

2. We think there was no error in the Judge in refusing to admit the statements of the girl made in view of death. The rule has been well settled in England, time out of mind, that dying declarations, are only admissable in a ease of homicide, and when there is a criminal proceeding against the slayer, and “ the declarations are of the circumstances attending the act producing the injury.” 2 Leach 256 ; 1 Leach 378; 2 B. and C., 605. Welborn vs. Bairem, 15 John., 286. Rex vs. Loyd, 4 C. and P., 233.

In the two cases 6th East. 188, and 3 Burrows, one stands on the ground of res gestee, and the other upon the ground of “ the declarations of a person, since deceased against his interest,” and are admissible as such. Code of Georgia, section 3723.

Both these cases are the statements of persons as to their own guilt, and are strongly contrary to their own interest, as well as deeply mortifying to their pride.

The case read from North Carolina, McFarland vs. Shaw, 2 N. C. Law R., 102 is, we admit, in point. But, much as we respect the Court which made it, we do not feel authorized to adopt it. It is directly contrary to the whole current of authority. This is by no means a new question; it has often been made before, and so far as we have been able to discover the case in North Carolina stands alone. We will not say that there is not, perhaps, as much reason for admitting the evidence in a case like this as in one of-a homicide. But when a rule has been well settled, we deem the fact that it is not consistent with principle, or with other rules, no reason for the Courts to set it aside. Courts ought not to make law. That is the province of the Legislature. They only interpret and declare the law, and though we doubt not the Court in the North Carolina case, was doing what it thought a good work, in straining a point to catch a guilty person, we think they erred. Had they said the rule they laid down, ought to be the law, we might, perhaps, agree with them, but, we do not agree that it is the law, and we think the authorities are uniform to the contrary.

Judgment affirmed.