Indictment for murder; from McDuffie superior court — Judge Henry C. Hammond. June 8, 1921. Charlie Smith was shot by Olin Johnson with a pistol, in the morning, before sunrise, the ball entering his left side and passing out under the breast bone, and he died within the next forty-eight hours.
Cited by 1 later decisions — most recently July 1943
¶1dissenting. I am of tlie opinion tliat tlie admission of the alleged dying declarations was harmful error. Such declarations, in my opinion, were calculated' to, and did, influence the jury.
The charge of the court as to dying declarations was as follows : “ Certain testimony has been admitted for your consideration, known to the law as dying declarations. Those declarations are not made under oath and are admitted to the jury on the theory that the person who made them, the deceased in this case, was apprehensive, was convinced, that his immediate dissolution was pending, that he was going to die; and only under those circumstances can they be received. While they have been admitted to you in evidence, still it is for you to say whether the deceased was in that condition of mind; and if he was, you should accept them, giving them such weight as you think them entitled to. If not, you should reject them entirely.”The dying declarations were admitted in evidence over the objection that it had not been shown that at the time of making them the declarant realized or believed that he was dying or going to die. The charge of the court as to dying declarations was complained of on the ground that the court failed to charge that such declarations should be received with great caution, and that the bias, feeling, and physical and mental condition of the declarant, as well as the credibility of the alleged declarations, should be weighed by the jury.J. B. Burnside, John T. West & Son, for plaintiff in error,
