1. The evidence authorized the verdict.
2. Special ground 1 is treated as abandoned, since it was not mentioned in the brief of counsel for the plaintiff in error, and no oral argument was made.
3. Sufficient foundation was laid to make a prima facie case for the admission *Page 642 of evidence to the jury of alleged dying declarations by the deceased.
4. The evidence did not require that the court charge the law on any grade of manslaughter.
No. 15438. MAY 9, 1946. Cordie Plummer was convicted of murder, with a recommendation of mercy, for the fatal shooting of Willie Mae Cornelius with a pistol. The defendant made his motion for new trial, on the general grounds, which was later amended by three special grounds. The exception is to the overruling of this motion as amended.
Willie Mae Cornelius was shot on Friday, August 1, 1941, and died on the following Monday morning. Her father, Linton Lattimore, testified that he accompanied his daughter to the hospital on the night that she was shot, that on the way she made certain statements to him, and that she was in a dying condition at the time she made the statements. She told him to take care of her children, and said that Cordie Plummer shot her for nothing. Annie Lou James, sister of the deceased, testified that the deceased talked with her on the night when she was shot. She stated that the deceased realized that she was in a dying condition, and said, "Help Papa take care of my children, I'm going to die." The deceased told the witness that Cordie Plummer shot her. The witness asked her what he shot her for, and she said, "Nothing." She said that he asked her where Warrensy was, and she told him that she did not know, and he cursed her and said she was telling a lie, and slapped her down, and when she got up, she said, "You are another one back," whereupon he shot her, blew out the lamp and left her.
There was evidence that, after the deceased died, the defendant left the State; that the officers were unable to locate him until 1945, when he was located in Ocala, Florida, where he was living under an assumed name; that he waived requisition and was brought back by the officers for trial in Laurens Superior Court for the murder of the deceased; and that he told the officer who arrested him that he had killed the deceased, but did not say how or why he did it.
Witnesses for the defendant testified that the defendant had been seen in Laurens County on several occasions after the homicide, *Page 643 that they did not report him because they thought the case was settled, and that his reputation in the community was good.
The defendant's statement was in part as follows: "Well, I went up the road to see another girl, and after I got there she wasn't at home. Me and another boy went there together, and we sat around and talked, and I and two boys got to tussling around. There wasn't no fighting or nothing, and the gun went to drop out of my pocket. I guess it caught and hung in my pocket, and it fired off and hit the girl. She didn't know she was shot then, and later on she said, `Cordie, you shot me.' And I said, `No, you are joking.' And she said, `You had better get the light.' And I got the lamp, and she was shot. I and another boy come back down the road and come back home. . . Nobody was drinking no whisky and there wasn't any fuss. Why I left, I didn't have no money, and I never had been to jail before. I wasn't dodging no officers. I just went on off to my aunts, and I visited back home three times." 1. The argument made by counsel for the plaintiff in error (herein called the defendant), in support of the contention that the trial court should have granted a new trial on the general grounds, is that the State failed to show that the defendant ever at any time had any malice or any intention of harming the deceased.
If the only evidence of the homicide had been the statement of the defendant that he committed the homicide, carrying with it circumstances which, if believed by the jury, would have shown the homicide to have been accidental, this argument might be persuasive, since a presumption of intention to kill does not arise in cases where the only proof of the homicide carries in immediate connection therewith circumstances which would amount to a modification or justification of the act. Green v.State, 124 Ga. 344 (5) (52 S.E. 431). In the present case, however, other evidence was introduced to prove the killing by the defendant — the dying declarations of the deceased, as related by her father and sister. While there was certainly nothing in this evidence to show any conceivable motive for taking the life of a fellow creature, *Page 644 it was sufficient to show an unlawful killing, without circumstances of justification, mitigation, or excuse. InCampbell v. State, 124 Ga. 432 (5) (52 S.E. 914), it was held: "In a trial for murder it is not necessary for the State to prove a motive for the crime in order to support the presumption of malice which arises from proof of an unlawful killing." And in a discussion of that case, the court said: "Common experience proclaims that many murders are committed where there is no apparent motive other than that which springs from an abandoned and malignant heart. . . The law presumes malice from an unlawful killing, and dispenses with the necessity of a motive to support the presumption."
Proof of an unlawful killing committed by the person charged, by using a deadly weapon in a manner likely to produce death, will raise a presumption of malice and the intention to kill.Moon v. State, 68 Ga. 688 (7); Weeks v. State, 79 Ga. 37 (5) (3 S.E. 323); Flannigan v. State, 135 Ga. 221 (4) (69 S.E. 171); Barbee v. State, 175 Ga. 307 (165 S.E. 232). The evidence in the present case was sufficient to authorize the verdict.
2. Special ground 1 of the motion for new trial, assigning error on the admission of evidence in response to an inquiry as to the whereabouts of certain State's witnesses, who had testified before the grand jury, will be treated as abandoned, since it was not mentioned in the brief of counsel for the accused, and no oral argument was made.
3. Special ground 2 complains that the court admitted in evidence dying declarations of the deceased, testified to by Linton Lattimore, over the objection of the defendant that the proper foundation had not been laid for their admission. The evidence of this witness as to dying declarations of the deceased is set out in the statement of facts. No contention is made in this ground that the statements of the deceased, quoted by Linton Lattimore, were not made while in a dying condition and in the apprehension and immediate prospect of death, the only objection being that they were admitted without a proper foundation having been laid for their admission.
The deceased was shot on Friday night, and the statements were made shortly afterwards, while she was on her way to the hospital. She died on Monday morning. An examination of the *Page 645 record shows that, before the court allowed the declarations in evidence, the witness stated: "I believe she realized the seriousness of her wound. . . She was shot once, and that was right in her stomach. She realized she was going to die."
The evidence was sufficient to make a prima facie case for the introduction of statements made by the deceased, as dying declarations. The court properly instructed the jury that they could consider the statements only if they determined them to have been made by the deceased while she was in a dying condition, and if she knew at the time the declarations were made that she was in such condition. See Dumas v. State, 62 Ga. 58 (2); Young v. State, 114 Ga. 849 (2) (40 S.E. 1000);Anderson v. State, 122 Ga. 161 (50 S.E. 46); Jefferson v. State, 137 Ga. 382 (3) (73 S.E. 499); Sisk v. State,182 Ga. 448 (4) (185 S.E. 777).
4. Special ground 3 complains that the court erred in not giving in charge to the jury the sections of the Code dealing with manslaughter, voluntary manslaughter and the punishment therefor, involuntary manslaughter and the punishment therefor. The State's evidence showed that the homicide was an unprovoked murder. The defendant in his statement claimed that it was unintentional, and the result of an accident. Therefore there was no grade of manslaughter in any way involved in the case, and the court did not err in failing to charge the sections listed.
Judgment affirmed. All the Justices concur.