dissenting. We can not concur in the judgment rendered in this case. We .think a new trial should have been granted upon two grounds which appear in the motion. First, the ground which complains of the refusal *382of the judge to continue the case on account of .the absence ■of two witnesses by whom the accused alleged that he expected to prove that they were acquainted with the general character ■of the deceased, that such character was bad, and that from their knowledge of it they would not believe him on oath. Second, the ground which complains of the admission in evidence of the following portion of the alleged dying declarations of the deceased: “In October, 1896, myself and H. S. Perry were walking up Decatur street in Atlanta, and he told me he wanted to show me a girl he had on Collins street. We went there. This was at night. Another time myself and H. S. Perry went there; this was on Sunday afternoon, and we went in the back way. On both of these occasions we went to No. 11 Collins street, and Mr. Perry called for and saw Miss Mamie Read, not an inmate of said house, but who came there from Lithonia, Georgia,, to meet said Perry, and stayed there most of the time. So far as I know she was the only woman Mr. Perry visited regularly.” The objections made to the admission of this evidence were, that it was not proper subject-matter of proof by dying declarations, was not in any way part of the res geste, and did not tend to illustrate the manner in which the deceased was killed.
The showing made on the application for a continuance •complied with the requirements of the law in such matters, .and a postponement of the trial should have been granted in order to .give the accused an opportunity to secure the attend■ance of the witnesses. The mere fact that the witnesses lived in a neighboring county (the railroad facilities between the place of their residence and the place of the trial being such •as to bring the two places within easy communication of each •other) was not a sufficient reason for refusing to postpone the ■case for a sufficient length of time to determine whether the .attendance of the witnesses could be secured.
The dying declarations of the deceased were introduced in ■evidence by the State, and it is well settled that when such ■evidence has been admitted it is allowable for the accused to introduce evidence tending to impeach the declarant by proof •of general bad character, just as if he had been sworn as a *383witness. These erroneous rulings of the judge were, in our opinion, calculated to prejudice the rights of the accused on the question of what punishment he should suffer. When a person is put upon his trial, charged with the offense of murder, the jury are called upon under the law of this State to decide two questions before a legal verdict of guilty can be rendered. Is the accused guilty or not guilty? If guilty, what punishment shall be inflicted? Shall he be punished ■capitally, or shall he be imprisoned in the penitentiary for the term of his natural life? It is well settled that no evidence which is not material on the main issue shall be allowed to go to the jury to be considered solely in determining the question of punishment, and that the only evidence which should go to the jury is such that is relevant and material to the main issue in the case, that is, the question of the guilt or innocence of the accused. They determine the first question according to the evidence which has been admitted and the law as given them in charge by the court. After having determined that question, the second question presented to them is, taking the case as made by the evidence upon which the finding of guilty is based, is the case of a character which requires capital punishment, or one in which life imprisonment would be proper. In determining the question of punishment the jury are not governed by any fixed rules. The decisions cited by Presiding Justice Lumpkin are sufficient in number and force to show that the settled law of this State is that the right of the jury to determine the punishment in a murder case is absolutely vested in them and not subject to be controlled either by the trial court or this court. While it is true that the jury should not determine this question capriciously but should have a due regard to the proper administration of the law and the interests of society, at the same time any attempt by the trial judge to hamper, control, or interfere with them in the determination of this question is improper and has often been held to be ground for a new trial. This being true, does it not clearly follow that if in the progress of the trial evidence which is calculated to prejudice the jury against the accused is improperly admitted, or evidence which might *384probably have been considered by tbe jury in favor of the accused is wrongfully excluded, such errors should bring about the same result as if the judge had made an erroneous charge on the right of the jury to determine the question of punishment? The policy of the law of this State is that in the determination of this question the jury shall be left free and untrammeled. It can be assumed in this case, as in all cases where dying declarations are relied upon, that this evidence was urged upon the jury with great solemnity; and on account of its peculiar character and the surroundings under which it was given, jurors are prone to accept it as sufficient to establish the facts therein set up. If the dying declarations were credited by the jury, who is there that can say that that portion of them above set forth, which was improperly before the jury, was not of such a character as to prejudice the accused in the mind of every juror? If what is there said about the accused is true, his conduct is disgraceful and odious and calculated to array against him the just indignation of any one who is not lost to all sense of decency and propriety. If the evidence of the absent witnesses had been before the jury, and they had credited the testimony of such witnesses and believed that the deceased was a man of bad character and unworthy of credit, who can say that this circumstance, though slight in its nature, might not have been considered by the jury when they had under determination the question of the punishment to be inflicted? That there was positive evidence of the guilt of the accused outside of the dying declarations does not alter the case. The trial judge could not tell, and this court can not tell, whether the failure of the jury to recommend life imprisonment was based upon the dying declarations or upon the other testimony. If upon the dying declarations, and not upon the other testimony, who is there that can say that evidence of the bad character of the deceased would not have had some weight in the minds. of the jury when they were about to determine what punishment was to be inflicted? We do not mean to say that the admission of the illegal evidence, or the refusal to allow the postponement to get testimony which would have been admitted if the witnesses had been present, would have had such an effect, but only that it *385would, in our opinion, have been calculated to have some effect upon the minds of the jury when, after having determined that the accused was guilty, they were considering how he should be punished. We are frank to admit that the entire evidence in the case is of such a -character as to satisfy almost any one that the accused was guilty of murder. Conceding this to be true, it is all the more reason why a new trial should' be granted'. The paradox apparently in this statement does not really exist, as will be shown. All that was left to the accused under the law was the privilege of asking the jury to punish him by imprisonment instead of by death. He had the same right to have this question fairly determined by the jury as he had to have the question of his guilt in that manner determined. The errors herein alluded to being, in our opinion, of a character calculated to influence the jury upon the question of punishment, they were such as required the granting of a new trial, in order that the jury might properly determine all of the questions which the law says should be determined solely by them. We are well aware of the fact that it is firmly established by the decisions of this court, both in civil and criminal cases, that where under the facts as they appear in the record no other verdict could be rendered under the law than that which appears in the record, a new trial will not be granted, although errors may have been committed during the progress of the trial. In other words, where the evidence in the case demands a certain verdict, that verdict will not be disturbed, notwithstanding errors may have been committed at the trial. This rule can have no application in a criminal case where the question of punishment is left absolutely to the discretion of the jury. It would properly be applied in those cases where the recommendation of the jury' about the punishment is purely advisory, and the judge has the right to disregard it if he sees proper. But in a murder case, where the power to determine the punishment is vested absolutely in the jury, it can not be said that any state of facts would demand a verdict of guilty of murder without a recommendation. This court can not say that a jury were compelled by any evidence, no matter what its character, to find a general verdict of guilty in a murder case; and to say *386that the evidence demands such a verdict is, in effect, the same as saying that the jury were compelled to bring in such finding. It therefore follows that any errors committed during the progress of the trial of a murder case, which were calculated to interfere with a fair determination by the jury of the question of punishment, would be ground for a new trial, notwithstanding that so much of the verdict as established the guilt of the accused might be said to be demanded by the evidence. The argument made by Presiding Justice Lumpkin in support of the verdict rendered in this case is strong and seems unanswerable; but the trouble is that it is addressed to those who under the law have no right to hear it. Such an argument, under the law of this State, can not properly be addressed to any other tribunal than the jury who tried the case. While what appears to the minds of all the members of the court to be the proper result in this case has been reached, that result has not been reached, in our opinion, in the way in which the law requires. It may be that a jury composed of men conscious of their obligations to society, and their duties under their oaths, would come to the conclusion that the interests of justice would be subserved by confining the accused in the penitentiary for life. It can make no difference whether they were influenced to that verdict by the evidence legally admitted, or were induced to that conclusion by the promptings of sympathy alone. The life of the accused was in their hands; and if they saw proper for any reason satisfactory to them to give it to him, no court has power to gainsay that exercise of that prerogative. And as the law vests in the jury the absolute power to determine this question without interference on the part of the court, when it appears in the record that anything has occurred which is calculated to interfere with a fair determination by the jury of this question, it is, in our opinion, the duty of this court to set aside the verdict and order a new trial, that the accused, if deprived of life, may suffer that punishment as. the result of a trial had in conformity to law.
Except as above indicated, we concur in the rulings made by the majority of the court.