Bush was indicted for the offense of voluntary manslaughter, and found guilty. He made a motion for a new trial, which was refused, and he excepted.
1. One of the assignments of error is that the court refused to continue the case on the showing made by the accused. This showing was based on the absence of four witnesses. It does not satisfactorily appear, by the evidence submitted on the motion to continue, that two of the witnesses had been subpoenaed; the other two had, and at the conclusion, of the evidence on the motion the court stated that he refused the motion as to the two witnesses who it appeared had not been subpoenaed; that the other two witnesses, Spooner and Thompson had been sent for by the court, and that if they should be brought in after the case had been ruled to trial he would allow them to be sworn at any time; that if they did not come, a motion from the defendant, even after the case had gone to trial, to continue it on account of their absence, would he entertained. Before the consideration of the case was concluded, the witness Spooner was brought into court and sworn.
It must be conceded that the action of the court in conditionally refusing the motion to continue was irregular. Very much the better practice would have been to postpone the trial of the case until the two witnesses Spooner and Thompson had been sent for, and failing to respond, the. judge should have then passed absolutely upon the motion submitted. It was not shown that the other two witnesses had been subpoenaed, and of course there should not have been any continuance on account of their absence. When the judge in response to the motion to continue for the absence of the two subpoenaed' witnesses stated that he would send for the witnesses, and if they were not brought into court that he would then entertain a motion from the defendant to continue, it was such an intimation that he would continue the case unless he was able to procure the attendance of the witnesses as required the counsel, when it was ascertained that Thompson could not be found, to renew the motion if they then desired to continue. No further suggestion in relation to continuance was made. It must therefore be assumed that if, under the circumstances stated, the motion had been renewed, the court would have continued the case, and that the judge was justified in supposing, in the absence of any renewal of the motion, that the defendant was satisfied to proceed, having procured the testimony of one of the witnesses. While this manner of passing on a motion to continue is irregular and unsatisfactory, it does not afford any ground for a reversal of the judgment.
2. It is further complained that the court sustained an objection to a question propounded in the following form: “Mr.- Corbett [deceased] was a man of violent disposition, wasn’t he?” We suppose that this question was intended to elicit information that the deceased bore the character of being a man of a violent disposition. There are several objections to the question as propounded. One sufficient one is that it was
3. It is complained in another ground of the motion, that the court committed error in admitting as evidence to the jury certain statements made by the deceased and offered as dying declarations. These statements were that at the schoolhouse Bush had cursed him for a G— d— son of a b — , and told him that he was going to kill him. To the admission of this evidence defendant objected on the ground that dying declarations could .only be admitted to prove who was the slayer, and the res geste of the homicide. Dying declarations of the deceased, as to the cause of the death and the person who killed him, are admissible in evidence in a prosecution for the homicide. Penal Code, § 1000. In the case of Wilkerson v. State, 91 Ga. 729, Mr. Justice Lumpkin, delivering the opinion of the court, said : “ In our opinion, the words ‘as to the cause of his death’ are sufficiently broad to include all relevant facts embraced in the res gestee of the homicide. The object of the law in permitting such declarations to be received would be defeated if they were confined to the immediate physical cause of the death, and the name of the slayer. The conversation or conduct of the parties at and immediately preceding the homicide, and constituting the res gestee of the occurrence, such as a witness would be permitted to relate, may, we think, be proved by the dying declarations of the person killed.” And in the case of White v. State, 100 Ga. 659, this construction of what might be received as dying declarations was approvingly referred to. So that we may now consider it as established, for the reason stated by Mr. Justice Lumpkin, that all relevant statements which are a part of the res geste of a homicide are admissible as dying declarations. The question then arises whether the statements objected to were so nearly connected with the act of homicide as to be free from suspicion of device or afterthought. Penal
4. Another ground of the motion assigns error in admitting in evidence the alleged dying declarations, without submitting to the jury for their determination the question as to whether such declarations were actually made, whether they were made in articulo mortis, and whether the deceased was conscious of his condition at the time they were made. In connection with this ground of the motion, the plaintiff in error sets out a portion of the charge of the judge, as follows : “The dying declarations of any man, when they are made in article of death, when he is conscious of his condition, can go to the jury as evidence, and should be considered with all the other evidence in tlio case in determining what the truth of the case is, that being the peculiar province of the jury, and then take the law from the court, and apply it to that state of facts as you find them, and then let that be the basis of your verdict.” From this charge the conclusion might be drawn by the jury that, inasmuch as the judge had admitted the declarations, it was their duty to consider the same as evidence, and to weigh them with the other facts in arriving at their verdict. It might also be inferred by the jury that, inasmuch as the evidence had been admitted, it was not necessary for them, in order to determine their value, to first find whether the declarations were in fact made in the article of death, and that the deceased was conscious of his condition at the time they were made. The ground of the motion is properly certified to by the presiding judge, and we find in the charge no reference to the duty of the jury to consider whether the declarations were made when the party was in a dying condition and whether he knew that fact. "We are quite sure that this necessary and important condition was momentarily overlooked by the presiding judge, hut the failure to so instruct might have had the effect of allowing the
Judgment reversed.