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MOBLEY, Justice.
Murder. Before Judge McClure. Dade Superior Court. June 21, 1954.
1. The preliminary evidence was sufficient to establish a prima facie foundation for the admission of statements made by the deceased and offered by the State as dying declarations; and the trial court did not err, as complained of in the first and second special grounds of the motion for new trial, in admitting the above evidence. Mitchell v. State, 71 Ga. 128 (2b); Varnedoe v. State, 75 Ga. 181 (1) (58 Am. R. 465); Bryant v. State, 80 Ga. 272 (1) (4 S. E. 853); Hawkins v. State, 141 Ga. 212 (3) (80 S. E. 711); Clements v. State, 141 Ga. 667 (1) (81 S. E. 1117); Kalb v. State, 195 Ga. 544 (4) (25 S. E. 2d 24); Weaver v. State, 200 Ga. 598 (2) (37 S. E. 2d 802); Davis v. State, 204 Ga. 467 (1) (50 S. E. 2d 604).
2. The third special ground, complaining of an excerpt from the charge of the court, not having been argued in this court or insisted on in the brief of the plaintiff in error, will be treated as abandoned. Code 6-1308; Rosborough v. State, 209 Ga. 362 (4) (72 S. E. 2d 717).
3. The evidence authorized the verdict of the jury finding the defendant guilty of murder, and the trial court did not err in denying his amended motion for new trial.
Milford, alias Milt, Lee and three other persons were indicted for the murder of Junis Nesbitt, by choking him and beating him with their fists and blunt instruments. Upon the separate trial of Milford Lee there was evidence substantially as follows: On October 23, 1951, the deceased, an elderly gentleman 78 to 80 years of age and feeble, was found unconscious in his rural home where he lived alone in Dade County. He died on December 2, 1951. He had been brutally beaten up, had lost much blood, and multiple bruises and abraisions were about his head and all over his body. There was a fracture of his lower left thigh, a fracture of one of the bones in his left wrist, and both hands were burned or scalded. Dried blood was in his hair. There were blisters on the inside of his hands. Over his eye there was a gash in which his skull was visible. His tongue was swollen. There were bruises in his mouth and some of his teeth were missing. He recovered consciousness a few days after being received into the hospital, but took a turn for the worse on October 29, after which he remained unconscious until he died. The immediate cause of death was pneumonia, but the injuries and the surgery he went through contributed to his death.
Before passing upon the admissibility of testimony as to statements made by the deceased, which were offered as dying declarations, the court sent the jury out and the following preliminary evidence was offered: During the period in which the deceased was conscious he stated he would not get well and that he would never get out of the hospital. He seemed to realize his condition.
When the jury returned, the court told them that the witness had testified that the deceased stated he would never make it, and that the court was leaving that in as a part of the evidence. Further evidence was introduced as follows: The deceased told witnesses that he had too many bruises and he would never make it, and that the defendant was one of the persons who beat him up in an effort to make him tell where he kept his money.
In August, 1951, a witness heard the defendant say that the deceased kept money in his house, and that he would get the money. The defendant was told that it was probably hid where he could not find it, and he replied that he had a way of finding it. He and three other persons were seen in the yard of the deceased going towards his house about the time the robbery occurred. When neighbors and officers entered the home of the deceased, they found letters and other articles from hump-backed trunks scattered over the floor, a door wrung off of a chifferobe, the top torn off a piano, two planks torn off of the inside of the house, a drawer removed from a table, a mattress thrown back on the bed, and blood on a chair.
The jury returned a verdict of guilty with a recommendation for mercy. The defendant's motion for new trial on the general grounds and three special grounds, complaining of rulings on the admissibility of evidence, and of an excerpt from a charge of the court, was denied, and he excepted.
Earl B. Self, Solicitor-General, Eugene Cook, Attorney-General, J. R. Parham, Assistant Attorney-General, contra.
McClure & Campbell, for plaintiff in error.
Saturday May 23 03:42 EDT

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