Wimbish v. State

Court of Appeals of Georgia

Wimbish v. State

79 S.E. 744, 13 Ga. App. 653, 1913 Ga. App. LEXIS 295

CourtCourt of Appeals of Georgia

DecidedOctober 28, 1913

Docket5091

StatusPublished

Cited by1 cases

This text of 79 S.E. 744 (Wimbish v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wimbish v. State, 79 S.E. 744, 13 Ga. App. 653, 1913 Ga. App. LEXIS 295 (Ga. Ct. App. 1913).

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Opinion

Hill, C. J.

1. The trial judge admitted the following statement made, by the decedent as being prima facie a dying declaration: “He seemed to be conscious. He said that he could not live, and, after he said that, he called Olis [the accused], and some one asked him what- did he want, and he told Olis to act fair with him, that he had promised to kill him, and if he had knowed that he was going to kill him he would have begged him not to do it.” Held: There wás' no error in permitting this statement to go to the jury, with the instruction that it might be considered by them for the purpose of determining whether it was a dying declaration, the jury being clearly instructed as to what constituted a dying declaration-; especially as the accused admitted on the trial that he had killed the decedent. •

2. The alleged newly discovered testimony was both negative and cumulative in character, its purpose being to show that the decedent did not make a dying declaration; and since the accused admitted on the trial that he shot the decedent and killed him, and set up self-defense, it is . not probable that this evidence would produce a different result on a second trial.

3. The theory of voluntary manslaughter is supported by some of the evidence, and the verdict of that offense, approved by the trial judge, will not be disturbed. Judgment affirmed.

Conviction of manslaughter; from Sumter superior court — Judge Littlejohn. June 26, 1913.

L. J. Blaloch, for plaintiff in error. J. B. Williams, solicitor-general, contra.

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Hill, C. J.

1. The trial judge admitted the following statement made, by the decedent as being prima facie a dying declaration: “He seemed to be conscious. He said that he could not live, and, after he said that, he called Olis [the accused], and some one asked him what- did he want, and he told Olis to act fair with him, that he had promised to kill him, and if he had knowed that he was going to kill him he would have begged him not to do it.” Held: There wás' no error in permitting this statement to go to the jury, with the instruction that it might be considered by them for the purpose of determining whether it was a dying declaration, the jury being clearly instructed as to what constituted a dying declaration-; especially as the accused admitted on the trial that he had killed the decedent. •

2. The alleged newly discovered testimony was both negative and cumulative in character, its purpose being to show that the decedent did not make a dying declaration; and since the accused admitted on the trial that he shot the decedent and killed him, and set up self-defense, it is . not probable that this evidence would produce a different result on a second trial.

3. The theory of voluntary manslaughter is supported by some of the evidence, and the verdict of that offense, approved by the trial judge, will not be disturbed. Judgment affirmed.

Conviction of manslaughter; from Sumter superior court — Judge Littlejohn. June 26, 1913.

L. J. Blaloch, for plaintiff in error. J. B. Williams, solicitor-general, contra.

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79 S.E. 744, 13 Ga. App. 653, 1913 Ga. App. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimbish-v-state-gactapp-1913.

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