dissenting. Relatively to the ruling in the first headnote, the decision of this court in Cain v. State, 166 Ga. 539 (3) (144 S. E. 6), is controlling. In that decision it was said “The act of 1927, supra, is in violation of art. 1, sec. 2, par. 1, of the constitution of the State (Civil Code of 1910, § 6382), which provides that ‘the jury in all criminal cases shall be the judges of the law and facts. The power of the judges to grant new trials in cases of conviction is preserved/” That decision was rendered by the entire bench of six Justices, and is binding as a precedent upon this court until overruled by the entire bench of six Justices. A formal motion or request has been made to review and overrule that decision. The motion should prevail, but all the Justices *826do not concur in that view; and consequently the decision must stand, and remain binding as a precedent.
Relatively to the ruling in headnote 3(b), it is declared in the Penal Code, § 1026: “Dying declarations, made by any person in the article of death, who is conscious of his condition, as to the cause of. his death and the person who killed him, are admissible in evidence in a prosecution for the homicide.” Under this law, a person, having received a mortal wound and made a declaration as set out in this case, and lived for a period of two months after such statement, was not in the “article of death” at the time of the declaration, and consequently the declaration was inadmissible in evidence as a dying declaration. In this connection see Mitchell v. State, 71 Ga. 128; Hawkins v. State, 141 Ga. 212 (80 S. E. 711).