Findley v. State

Lumpkin, J.

(After stating the facts.)

1. The evidence made a. sufficient prima facie case to carry the dying declarations to the jury. When this is done, they may be admitted and the jury left to determine whether in fact the person making them was in articulo mortis and realized that death/ was impending. Anderson v. State, 122 Ga. 161. Whether any part of the declarations was objectionable on other grounds or not, they were not subject to the objections made.

2. The charge of the court complained of was quite as favorable to the accused as he could have expected. It stated to the jury, as to testimony touching what were claimed to be dying declarations, that in order to make tlris evidence at all for their consideration they must be satisfied beyond a reasonable doubt that the declarations were made-while the person making them was in a dying condition; and that he knew at the time that he was in such condition; that if either one of these conditions did not exist, the declarations would not be testimony to be considered at all; but if both existed, they would become what the law terms dying declarations, and if made under such conditions, “it is testimony to be considered with all the other testimony in the case.” This charge is quite different from that discussed in the case of Mitchell v. State, 71 Ga. 148, where the court admitted dying declarations, saying that he would instruct the jury as to their weight, and where he charged that if the declarant was conscious of the fact that he had been wounded and that he would die from the wound, and if while in that condition he made a statement as to who wounded him, “then j^ou may consider that statement as though it had been given in under oath on the trial of the case.”

3. The evidence in this case involved the question of whether or not there was such a mutual combat at the time of the homicide as to reduce the killing from murder to manslaughter. The court omitted entirely any reference to that subject, though charging generally on the subject of manslaughter.. In Ray v. State, 15 Ga. 223, it was said: “Our law requires that there should be some assault, by the person killed, upon the person killing; but evidence of such assault may be found in a mutual intention to fight, and in the fact of an approach by the decedent to the prisoner, in furtherance of this design, when it was not necessary for him to do so in self-defense.” Mutual blows are not always necessary to make mutual combat. Tate v. State, 46 Ga. 157; Gresham v. Equitable Ins. Co., 87 Ga. 497. See also McMillan v. State, 35 Ga. 60; Trice v. State, 89 Ga. 742; Gann v. State, 30 Ga. 346; 7 Michie’s Dig. Ga. Rep. 76-77; 2 Roscoe’s Cr. Ev. *724. Where the law of mutual combat is essentially for consideration in the ease, the charge should submit it to the jury. Waller v. State, 100 Ga. 320.

4. The complaint' that the court did not set forth in his charge what would constitute “equivalent circumstances,” in the meaning of the Penal Code, §65, is not well taken. “What circumstances will present this equivalence, and justify the excitement of passion, and exclude all idea of deliberation or malice, the law does not undertake to say; it furnishes a standard, and leaves the jury in each case to make the comparison, and determine whether the special facts of the case before them come up to that standard or not.” Mack v. State, 63 Ga. 693, 696. In Edwards v. State, 53 Ga. 428, it was held, that the equivalent circumstances referred to in the statute do not include words, threats, menaces, and contemptuous gestures. Sumner v. State, 109 Ga. 142, 143.

Judgment reversed.

All the Justices concur.