Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, §§ 3697, 3704, 3705, and 3709, former Code 1868, §§ 3721, 3728, and 3729, former Code 1873, §§ 3774 and 3781, former Code 1882, §§ 3774, 3776, 3781, and 3782, former Civil Code 1895, §§ 5180, 5181, and 5186, former Penal Code 1895, §§ 1000 and 1001, former Civil Code 1910, §§ 5767, 5768, and 5773, former Penal Code 1910, §§ 1026 and 1027, former Code 1933, §§ 38-307, 38-308, 38-309, 38-314, and 38-405, and former O.C.G.A. §§ 24-3-6,24-3-7,24-3-8,24-3-10, and24-3-35 are included in the annotations for this Code section.

In light of the reenactment of this Title, effective January 1, 2013, the reader is advised to consult the annotations following Code Section 24-8-803, which may also be applicable to this Code section.

For case discussing history of former statute, see Burns v. State, 191 Ga. 60, 11 S.E.2d 350 (1940) (decided under former O.C.G.A. § 24-3-10).

Constitutional right of confrontation.

- Confrontation clause was not offended when the defendant waived at trial, through defendant's counsel at that time, the use of prior sworn testimony of an inaccessible witness and therefore cannot claim the waiver was error for the first time on appeal. Riley v. State, 237 Ga. 124, 226 S.E.2d 922 (1976) (decided under former Code 1933, § 38-314).

Defendant's constitutional right to confront the defendant's accusers was violated because the state failed to show that the victim and the minor child were unavailable to testify at trial; and because the victim's and minor child's out-of-court statements to the police officer at the scene were testimonial in nature as, during the time the victim and minor child were being questioned by the police officer, the defendant remained at the residence at the officer's request and posed no apparent threat to anyone; and the victim and the minor child made statements to the officer under circumstances which objectively indicated that the primary purpose of the interrogation was to establish the facts necessary for criminal prosecution. Legree v. State, 344 Ga. App. 793, 812 S.E.2d 68 (2018).

Former statute was really a rule of necessity. Herndon v. Chamberlain, 39 Ga. App. 207, 146 S.E. 503 (1929) (decided under former Civil Code 1910, § 5773); Parrott v. Edwards, 113 Ga. App. 422, 148 S.E.2d 175 (1966);(decided under former Code 1933, § 38-314).

Former statute has been uniformly applied to criminal as well as to civil cases. Burns v. State, 191 Ga. 60, 11 S.E.2d 350 (1940) (decided under former Code 1933, § 38-314).

Former O.C.G.A. § 24-3-10 was an exception to the hearsay rule to prove the testimony of a witness at a former trial under certain circumstances when the witness is unavailable at a later trial. Gottschalk v. State, 160 Ga. App. 769, 287 S.E.2d 107 (1982) (decided under former O.C.G.A. § 24-3-10).

Relationship of former O.C.G.A.

§ 24-3-10 to O.C.G.A. § 9-11-32(a)(5). - Specific and limited provision for the admission into evidence in a subsequent trial of depositions taken in a prior action is made by O.C.G.A. § 9-11-32(a)(5). All other issues relating to the admission into evidence in a subsequent trial of testimony taken in connection with a prior action must be resolved under former O.C.G.A. § 24-3-10. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981) (decided under former O.C.G.A. § 24-3-10).

Applicability of new rule on retrial.

- Because the new evidence statute regarding the unavailability of a witness based on a defendant's engaging or acquiescing in wrongdoing is a procedural statute and would apply to a retrial, even if the trial court erroneously admitted testimonial and non-testimonial hearsay under the prior evidence code, the same evidence would be properly admitted at a second trial due to a procedural change in the laws of evidence. Brittain v. State, 329 Ga. App. 689, 766 S.E.2d 106 (2014).

Whether the party objecting had adequate opportunity to cross-examine the witness at the previous trial was the central issue in determining whether the former statute applied. Cates v. State, 245 Ga. 30, 262 S.E.2d 796 (1980) (decided under former Code 1933, § 38-314); Craft v. State, 154 Ga. App. 682, 269 S.E.2d 490 (1980);(decided under former Code 1933, § 38-314).

For prior testimony to be admissible, the party challenging the testimony must have had the opportunity at the earlier proceeding to cross-examine the witness on the issue to be decided in the later proceeding, which necessarily means that the earlier and later proceedings have to involve substantially the same issue. In re Spruell, 227 Ga. App. 324, 489 S.E.2d 48 (1997) (decided under former O.C.G.A. § 24-3-10).

Sole question determined by former statute was whether the party against whom the former testimony was now offered had an adequate opportunity by cross-examination to sift this testimony. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981) (decided under former Code 1933, 38-314).

When the issues and parties were identical and the party against whom the testimony was offered called the witness to the stand at the previous hearing or trial, the need for cross-examination is basically satisfied, and the requirement of former O.C.G.A. § 24-3-10 was met. Barnes v. State, 256 Ga. 370, 349 S.E.2d 387 (1986) (decided under former O.C.G.A. § 24-3-10).

Parties and issues in actions must be same.

- Former O.C.G.A. § 24-3-10 required as the prerequisite to the admission in a subsequent action of the prior testimony of a since deceased witness that the parties and issues in the two actions be substantially the same. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981) (decided under former O.C.G.A. § 24-3-10); GMC v. Moseley, 213 Ga. App. 875, 447 S.E.2d 302 (1994);(decided under former O.C.G.A. § 24-3-10).

Substantial compliance with former requirement.

- Substantial and not a literal compliance with the conditions of the former statute was all that was required. Mitchell v. State, 71 Ga. 128 (1883) (decided under former Code 1882, § 3782).

Same issues required.

- Evidence as to what a deceased witness testified on a previous trial is not admissible when it appears that the issue therein involved was not substantially the same as that in controversy on the trial at which such evidence is tendered. Lathrop v. Adkisson, 87 Ga. 339, 13 S.E. 517 (1891) (decided under former Code 1882, § 3782); Whitaker v. Arnold, 110 Ga. 857, 36 S.E. 231 (1900);(decided under former Civil Code 1895, § 5186).

Former statute did not require that all the issues in the two proceedings be the same; but the issue to which the former testimony was directed must be the same as the issue upon which the testimony is offered in the second. Craft v. State, 154 Ga. App. 682, 269 S.E.2d 490 (1980) (decided under former Code 1933, § 38-314).

Former statute did not demand that all the issues or parties be the same but requires only that the issue on which the testimony was offered in the first suit be the same as the issue upon which the testimony is offered in the second. Vanhouten v. State, 193 Ga. App. 871, 389 S.E.2d 534 (1989) (decided under former O.C.G.A. § 24-3-10).

Companion case growing out of a common occurrence, though not wholly between the same parties, was a former trial within the meaning of the former statute. Myrick v. Sievers, 104 Ga. App. 95, 121 S.E.2d 185 (1961) (decided under former Code 1933, § 38-314).

Probative value.

- Testimony admitted under the former statute had probative value as original testimony. Maynard v. Rawlins, 45 Ga. App. 91, 163 S.E. 269 (1932) (decided under former Civil Code 1910, § 5773).

Burden of proof.

- Party seeking introduction of the testimony at a prior trial must show that the witness is inaccessible. Riley v. State, 237 Ga. 124, 226 S.E.2d 922 (1976) (decided under former Code 1933, § 38-314).

Party seeking to introduce testimony given at a prior trial must show that the witness is inaccessible. Whether a witness is inaccessible depends upon the diligence shown by the party seeking to use the witness's testimony in ascertaining the witness's whereabouts and the attempts made to bring the witness into court. Johnson v. State, 197 Ga. App. 384, 398 S.E.2d 432 (1990) (decided under former O.C.G.A. § 24-3-10).

Proof by parol evidence.

- When a witness who testified at a committing trial subsequently died, on the final trial of the same case in the superior court the witness's testimony so given was admissible, and there being nothing to show that the testimony was reduced to writing, it was competent to prove such testimony by parol. Robinson v. State, 68 Ga. 833 (1882) (decided under former Code 1882, § 3782).

Testimony compelled by grant of immunity admissible.

- Testimony may be admitted pursuant to former O.C.G.A. § 24-3-10 although that testimony was compelled by the state after a grant of immunity. Kesler v. Veal, 165 Ga. App. 475, 300 S.E.2d 217 (1983) (decided under former O.C.G.A. § 24-3-10).

Testimony at plea hearing properly excluded.

- Trial court did not abuse the court's discretion in refusing to admit under former O.C.G.A. § 24-3-10 statements a co-indictee made during a plea hearing because the co-indictee's testimony at the plea hearing did not satisfy former § 24-3-10, and the defendant failed to establish a substantial similarity of issues between the defendant's trial and the co-indictee's plea hearing such as would ensure that the state had an opportunity for meaningful cross-examination at the plea hearing; the state questioned the co-indictee at the co-indictee's plea hearing to establish the factual basis for the co-indictee's plea and to show that the co-indictee was entering the plea freely and voluntarily, and as the purpose of the hearing was to protect the co-indictee, the state was not afforded an opportunity for meaningful crossexamination. Silverio v. State, 306 Ga. App. 438, 702 S.E.2d 717 (2010) (decided under former O.C.G.A. § 24-3-10).

Ineffective assistance of counsel.

- Trial counsel was not ineffective for failing to challenge the admission of testimony regarding the victim's dying declaration because the statement satisfied the requirements for admission of a dying declaration under former O.C.G.A. § 24-3-6; the defendant identified no valid basis for objection. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012) (decided under former O.C.G.A. § 24-3-6).

Deceased witness's testimony from preliminary hearing admissible.

- Recounting of deceased's preliminary hearing testimony which had been given subject to cross-examination by the defendant's attorney does not violate the defendant's right of confrontation. Littles v. Balkcom, 245 Ga. 285, 264 S.E.2d 219 (1980) (decided under former Code 1933, § 38-314).

Error to admit testimony from deceased witness.

- Because defendant had no opportunity to confront a deceased witness at an accomplice's trial, the trial court erred in admitting the witness's statements at defendant's trial pursuant to former O.C.G.A. § 24-3-10; in addition, the statements were testimonial and violated defendant's confrontation rights. Willingham v. State, 279 Ga. 886, 622 S.E.2d 343 (2005) (decided under former O.C.G.A. § 24-3-10).

Deceased codefendant's entire testimony at defendant's first trial was admissible at retrial even though defendant's character was incidentally placed in issue. Chambers v. State, 213 Ga. App. 414, 444 S.E.2d 820 (1994) (decided under former O.C.G.A. § 24-3-10).

Deceased witness testimony from sentencing proceeding admissible.

- Prior testimony of a deceased witness at a sentencing trial held before the defendant withdrew the defendant's guilty plea was admissible at the defendant's guilt/innocence trial. The state sought the admission of this testimony, which included the witness's account of the witness's rape and the murders of family members to help meet the state's burden to prove beyond a reasonable doubt that the defendant was guilty of these crimes; furthermore, there was no limitation on the defendant's cross-examination of the witness at the sentencing trial. Martin v. State, 284 Ga. 504, 668 S.E.2d 685 (2008) (decided under former O.C.G.A. § 24-3-10).

Mere contention insufficient.

- State is allowed to use a transcript of testimony of an absent witness upon the state's showing, and not mere contention, that after diligent search, the state could not locate the witness. Hewell v. State, 136 Ga. App. 420, 221 S.E.2d 219 (1975), later appeal, 139 Ga. App. 622, 229 S.E.2d 92 (1976), rev'd on other grounds, 238 Ga. 578, 234 S.E.2d 497 (1977) (decided under former Code 1933, § 38-314).

Proof of inability to find a witness after diligent search may be sufficient to establish that such witness was inaccessible within the meaning of the former statute. Robinson v. State, 128 Ga. 254, 57 S.E. 315 (1907) (decided under former Penal Code 1895, § 1001); Goodwin v. State, 49 Ga. App. 223, 174 S.E. 742 (1934); Jones v. State, 250 Ga. 166, 296 S.E.2d 598 (1982) (decided under former Code 1933, § 38-314);(decided under former O.C.G.A. § 24-3-10).

Parties never inaccessible.

- Party to a pending case was not, though beyond the jurisdiction of the court when the case was tried, inaccessible within the meaning of the former statute. Crumm v. Allen & Co., 11 Ga. App. 203, 75 S.E. 108 (1912) (decided under former Civil Code 1910, § 5773).

Sufficiency of the search for the witness who testified previously is a matter left to the discretion of the trial judge, whose judgment will not be reversed unless a manifest abuse of discretion appears. Robinson v. State, 128 Ga. 254, 57 S.E. 315 (1907) (decided under former Penal Code 1895, § 1001); Goodwin v. State, 49 Ga. App. 223, 174 S.E. 742 (1934); Norris v. State, 58 Ga. App. 399, 198 S.E. 714 (1938) (decided under former Code 1933, § 38-314); Gaither v. State, 227 Ga. 668, 182 S.E.2d 434 (1971);(decided under former Code 1933, § 38-314);(decided under former Code 1933, § 38-314).

Pre-trial testimony of witness three (W3) was properly excluded as W3 was not an inaccessible witness under former O.C.G.A. § 24-3-10 since the subpoena obtained by the state, combined with the attempts to locate W3 on the day that the defendant intended to call W3 as a witness and on the following day, did not demand a finding of due diligence in obtaining W3's presence; the defendant's delay in attempting to contact W3 and the defendant's failure to have any investigator go to W3's known address were contrary to the requirements of diligence. Hill v. State, 291 Ga. 160, 728 S.E.2d 225 (2012)(decided under former O.C.G.A. § 24-3-10).

Witness beyond the limits of the state is inaccessible. Adair v. Adair, 39 Ga. 75 (1869) (decided under former Code 1868, § 3729); Smith v. State, 72 Ga. 114 (1883); Swift v. Oglesby & Smith, 8 Ga. App. 540, 70 S.E. 97 (1911) (decided under former Code 1882, § 3782); Brinson Ry. v. Beard, 11 Ga. App. 737, 76 S.E. 76 (1912); Brown v. Matheson, 142 Ga. 396, 83 S.E. 98 (1914) (decided under former Civil Code 1910, § 5773); Smith v. State, 147 Ga. 689, 95 S.E. 281 (1918); Estill v. Citizens & S. Bank, 153 Ga. 618, 113 S.E. 552 (1922) (decided under former Civil Code 1910, § 5773); Taylor v. State, 155 Ga. 785, 118 S.E. 675 (1923); Carswell, Moxley & Son v. Harrison, 33 Ga. App. 140, 126 S.E. 293 (1924) (decided under former Civil Code 1910, § 5773); Norris v. State, 58 Ga. App. 399, 198 S.E. 714 (1938); Goodwin v. Allen, 83 Ga. App. 615, 64 S.E.2d 212 (1951) (decided under former Civil Code 1910, § 5773);(decided under former Civil Code 1910, § 5773);(decided under former Civil Code 1910, § 5773);(decided under former Civil Code 1910, § 5773);(decided under former Code 1933, § 38-314);(decided under former Code 1933, § 38-314).

Word "inaccessible" does not apply to a witness who, though absent from the county of the trial, is nevertheless at the time of the trial, a resident of a different county in the same state. Broach v. Kelly, 71 Ga. 698 (1883), overruled on other grounds, Ward v. Hudco Loan Co., 254 Ga. 294, 328 S.E.2d 729 (1985) (decided under former Code 1882, § 3782); Taylor v. State, 126 Ga. 557, 55 S.E. 474 (1906); Brinson Ry. v. Beard, 11 Ga. App. 737, 76 S.E. 76 (1912) (decided under former Penal Code 1895, § 1001);(decided under former Civil Code 1910, § 5773).

In the case of a witness who may be difficult to locate, the state should begin to look for the witness sooner than the date of the beginning of the trial. Gaither v. State, 227 Ga. 668, 182 S.E.2d 434 (1971) (decided under former Code 1933, § 38-314).

Disability of witness.

- In criminal prosecutions, according to the weight of authority, the mere temporary illness or disability of a witness is not sufficient to justify the reception of the witness's former testimony; it must appear that the witness is in such a state, either mentally or physically, that in reasonable probability the witness will never be able to attend the trial. Tanner v. State, 213 Ga. 820, 102 S.E.2d 176 (1958) (decided under former Code 1933, § 38-314).

Privilege as constituting inaccessibility.

- Inaccessibility of witness has been construed to include assertion of privilege by a witness. Wiseman v. State, 249 Ga. 559, 292 S.E.2d 670 (1982) (decided under former O.C.G.A. § 24-3-10).

Testimony from escaped prisoner admissible.

- In trial for murder, where witness from preliminary hearing was not available at time of trial, having had escaped from prison, defendant's right of confrontation under U.S. Const., amend. 6 was not violated by admission of transcript of witness's testimony at defendant's preliminary hearing, at which defendant was represented by counsel and witness was cross-examined. Stidem v. State, 246 Ga. 637, 272 S.E.2d 338 (1980) (decided under former Code 1933, § 38-314).

Failure to grant continuance proper.

- Trial court did not err in admitting the testimony given by an inaccessible witness under oath in a former trial on substantially the same issue and between the same parties, and, thus, did not err in denying defendant's motion for a continuance as the former testimony was deemed "inherently reliable", its use did not violate the accused's right of confrontation, and defendant did not show that the witness could have been located if a continuance had been granted as diligent attempts had already been undertaken, without success, to locate the witness. Dillingham v. State, 275 Ga. 665, 571 S.E.2d 777 (2002) (decided under former O.C.G.A. § 24-3-10).

Testimony from probation revocation hearing admissible when witness unavailable.

- When a witness made it clear that the witness would not testify about the shooting at trial, the witness's sworn testimony at the defendant's probation revocation hearing, which concerned substantially the same issue and where the witness was subject to cross-examination, was admissible under former O.C.G.A. § 24-3-10. Hardeman v. State, 277 Ga. App. 180, 626 S.E.2d 138 (2006) (decided under former O.C.G.A. § 24-3-10).

Evidence sufficient to show inaccessibility of witnesses in the following cases.

- See Armstrong Furn. Co. v. Nickle, 110 Ga. App. 686, 140 S.E.2d 72 (1964) (decided under former Code 1933, § 38-314); Hewell v. State, 139 Ga. App. 622, 229 S.E.2d 92 (1976); 238 Ga. 578, 234 S.E.2d 497 (1977), rev'd on other grounds, Tolbert v. State, 239 Ga. App. 703, 521 S.E.2d 827 (1999) (decided under former Code 1933, § 38-314); Walton v. State, 272 Ga. 73, 526 S.E.2d 333 (2000);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10).

Evidence insufficient to show inaccessibility of witnesses in the following cases.

- See Herndon v. Chamberlain, 39 Ga. App. 207, 146 S.E. 503 (1929) (decided under former Penal Code 1910, § 1027); Standridge v. Standridge, 224 Ga. 102, 160 S.E.2d 377 (1968); Whatley v. State, 230 Ga. 523, 198 S.E.2d 176 (1973) (decided under former Code 1933, § 38-314); Century Dodge, Inc. v. Mobley, 155 Ga. App. 712, 272 S.E.2d 502 (1980);(decided under former Code 1933, § 38-314);(decided under former Code 1933, § 38-314).

Inaccessibility not shown.

- Trial court's ruling that defendant failed to show inaccessibility of a witness upon the exercise of due diligence was affirmed since defendant had six months after defendant's arraignment attempted three times to serve a subpoena on the witness prior to trial, and since defendant declined the trial court's offer of a continuance for the purpose of further searching for the witness. Carter v. State, 266 Ga. App. 691, 598 S.E.2d 76 (2004) (decided under former O.C.G.A. § 24-3-10).

Inaccessibility of a witness is to be determined within the sound discretion of the court and will not be disturbed unless there is a manifest abuse of discretion. Estill v. Citizens & S. Bank, 153 Ga. 618, 113 S.E. 552 (1922) (decided under former Civil Code 1910, § 5773); Brooks v. State, 69 Ga. App. 697, 26 S.E.2d 549 (1943); Pacific Nat'l Fire Ins. Co. v. Beavers, 87 Ga. App. 294, 73 S.E.2d 765 (1952) (decided under former Code 1933, § 38-314); Tanner v. State, 213 Ga. 820, 102 S.E.2d 176 (1958); Robertson v. State, 124 Ga. App. 119, 183 S.E.2d 47 (1971) (decided under former Code 1933, § 38-314); Riley v. State, 237 Ga. 124, 226 S.E.2d 922 (1976); LaCount v. State, 237 Ga. 181, 227 S.E.2d 31 (1976) (decided under former Code 1933, § 38-314); 429 U.S. 1046, 97 S. Ct. 753, 50 L. Ed. 2d 761 (1977); Hewell v. State, 139 Ga. App. 622, 229 S.E.2d 92 (1976) (decided under former Code 1933, § 38-314); 238 Ga. 578, 234 S.E.2d 497 (1977); Smith v. State, 247 Ga. 453, 276 S.E.2d 633 (1981) (decided under former Code 1933, § 38-314); Gibson v. State, 160 Ga. App. 615, 287 S.E.2d 595 (1981); Jones v. State, 250 Ga. 166, 296 S.E.2d 598 (1982), cert. denied, Kesler v. Veal, 165 Ga. App. 475, 300 S.E.2d 217 (1983) (decided under former Code 1933, § 38-314); Thomas v. State, 192 Ga. App. 744, 386 S.E.2d 402 (1989); Barry v. State, 214 Ga. App. 418, 448 S.E.2d 243 (1994), rev'd on other grounds, Palmer v. Taylor, 215 Ga. App. 546, 451 S.E.2d 486 (1994) (decided under former Code 1933, § 38-314);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10).

Standard on appeal of question of inaccessibility.

- Primary consideration on appeal is not whether the Court of Appeals agrees with the trial court's finding that a witness was inaccessible, but whether that finding constitutes an abuse of discretion. Kesler v. Veal, 165 Ga. App. 475, 300 S.E.2d 217 (1983) (decided under former O.C.G.A. § 24-3-10).

Survival of action.

- When a parent began suit against a railroad for damages for a personal injury to the parent, and subsequently died from the results of the injury, and a suit for the homicide was brought by the parent's child, answers of the decedent to interrogatories taken during the decedent's life in the suit were admissible in the action by the child. Atlanta & W.P.R.R. v. Venable, 67 Ga. 697 (1881) (decided under former Code 1873, § 3782).

Substantial similarity not found.

- Suit for personal injuries to a minor, brought in the minor's behalf by the minor's father as next friend, is not, either as to cause of action or as to parties, actually or substantially the same as a suit by the father in the father's own right for loss of the minor's services, occasioned by those injuries. Hooper v. Southern Ry., 112 Ga. 96, 37 S.E. 165 (1900) (decided under former Civil Code 1895, § 5186).

Preliminary hearings.

- Introduction of testimony previously taken of a witness at a preliminary hearing is permitted if it is shown either that the witness is out of the jurisdiction or that the witness cannot with due diligence be found within the state. LaCount v. State, 237 Ga. 181, 227 S.E.2d 31 (1976), cert. denied, 429 U.S. 1046, 97 S. Ct. 753, 50 L. Ed. 2d 761 (1977) (decided under former Code 1933, § 38-314).

When the victim died before trial, the victim's preliminary hearing testimony identifying defendant as a burglar was admissible. Igle v. State, 223 Ga. App. 498, 478 S.E.2d 622 (1996) (decided under former O.C.G.A. § 24-3-10).

Trial court did not err in allowing an unavailable witness's preliminary hearing testimony to be read to the jury pursuant to former O.C.G.A. § 24-3-10 because the state exercised due diligence in seeking to locate the witness; despite efforts by state officials, the witness could not be located. Thomas v. State, 290 Ga. 653, 723 S.E.2d 885 (2012) (decided under former O.C.G.A. § 24-3-10).

Testimony given at hearing on suppression of evidence.

- Transcript of the testimony of an unavailable witness who testified for the defendant at the hearing on defendant's motion to suppress evidence was admissible since the testimony involved essentially the same issue as in the trial. Williams v. State, 214 Ga. App. 280, 447 S.E.2d 676 (1994), aff'd, 265 Ga. 471, 457 S.E.2d 665 (1995) (decided under former O.C.G.A. § 24-3-10).

Testimony given at coroner's inquest.

- Testimony as to the substance of evidence given at a coroner's inquest by a witness since deceased was admissible when offered for impeachment purposes. Darby v. Moore, 144 Ga. 758, 87 S.E. 1067 (1916) (decided under former Civil Code 1910, § 5773).

Production of articles present at former trial.

- When the testimony of a deceased witness who had testified at the former trial contained references to certain physical objects, which at the former trial were in court, this fact did not stop the operation of the former statute on the ground that such articles were not produced in court at the trial now under review nor offered in evidence, even though the state did not account for their absence. Bloodworth v. State, 161 Ga. 332, 131 S.E. 80 (1925) (decided under former Penal Code 1910, § 1027).

Agreed writing.

- Evidence of a witness, since deceased, given on a former trial, on the same case, between the same parties, reduced to writing and agreed upon by counsel, is admissible on a subsequent trial. Walker v. Walker, 14 Ga. 242 (1853) (decided under former Code 1863, § 3705); Smith v. State, 28 Ga. 19 (1859); Adair v. Adair, 39 Ga. 75 (1869) (decided under former law); Lathrop v. Adkisson, 87 Ga. 339, 13 S.E. 517 (1891);(decided under former Code 1868, § 3729);(decided under former Code 1882, § 3782).

Ex parte affidavits.

- Former statute did not authorize the admission in evidence on the final trial of the case an ex parte affidavit made by a witness since deceased for use on the hearing of an application for interlocutory injunction in the same case. Fender v. Ramsey & Phillips, 131 Ga. 440, 62 S.E. 527 (1908) (decided under former Civil Code 1895, § 5186); Byrd v. Prudential Ins. Co. of America, 185 Ga. 625, 196 S.E. 72 (1938);(decided under former Code 1933, § 38-314).

Testimony given at execution of an affidavit for an arrest warrant.

- In a probation revocation proceeding, a court clerk's testimony regarding a wife's statements at the time of an application for an arrest warrant was not admissible since the party against whom the warrant was offered had not had the opportunity to cross-examine the wife. Farmer v. State, 266 Ga. 869, 472 S.E.2d 70 (1996) (decided under former O.C.G.A. § 24-3-10).

"Former trial" includes a commitment hearing. Wiseman v. State, 249 Ga. 559, 292 S.E.2d 670 (1982) (decided under former O.C.G.A. § 24-3-10).

Guilty plea to a reduced criminal charge is proper evidence as an admission in a subsequent civil action, despite the fact that the admission was the result of a compromise in the criminal case. Kesler v. Veal, 165 Ga. App. 475, 300 S.E.2d 217 (1983) (decided under former O.C.G.A. § 24-3-10).

Statement of child witness about abuse of victim not admissible.

- Out-of-court statements of a child witness who observes the physical abuse of another child, but who is not personally a victim of such abuse, may not be admitted as an exception to the hearsay rule under former O.C.G.A. § 24-3-10. Thornton v. State, 264 Ga. 563, 449 S.E.2d 98 (1994) (decided under former O.C.G.A. § 24-3-10).

Testimony in probation revocation hearings.

- Trial court erred in considering the prior testimony of witnesses who were not shown to be dead, disqualified, or otherwise inaccessible in a probation revocation hearing; nevertheless, any inadmissible hearsay was merely cumulative of the admissible probative testimony which was sufficient to show by a preponderance of the evidence that defendant committed the offense of aggravated assault. Wolcott v. State, 278 Ga. 664, 604 S.E.2d 478 (2004) (decided under former O.C.G.A. § 24-3-10).

Admission of cumulative testimony denied.

- Defendant's reading into evidence the prior testimony of an unavailable witness was properly denied since the testimony would have been cumulative of other testimony, except as to a nonprobative matter. Pickens v. State, 225 Ga. App. 792, 484 S.E.2d 731 (1997) (decided under former O.C.G.A. § 24-3-10).

Former testimony was properly admitted in the following cases.

- See Banks v. Bradwell, 140 Ga. 640, 79 S.E. 572 (1913) (decided under former Civil Code 1910, § 5773); Hunter v. State, 147 Ga. 823, 95 S.E. 668 (1918); Sheppard v. State, 167 Ga. 326, 145 S.E. 654 (1928) (decided under former Penal Code 1910, § 1027); Georgia Chem. Works v. Malcolm, 186 Ga. 275, 197 S.E. 763 (1938); Pacific Nat'l Fire Ins. Co. v. Beavers, 87 Ga. App. 294, 73 S.E.2d 765 (1952) (decided under former Penal Code 1910, § 1027); National Life & Accident Ins. Co. v. Fender, 146 Ga. App. 545, 247 S.E.2d 195 (1978); Gibson v. State, 160 Ga. App. 615, 287 S.E.2d 595 (1981) (decided under former Code 1933, § 38-314); Knight v. State, 210 Ga. App. 63, 435 S.E.2d 276 (1993); Ortiz v. State, 222 Ga. App. 432, 474 S.E.2d 300 (1996) (decided under former Code 1933, § 38-314); Pope v. Fields, 273 Ga. 6, 536 S.E.2d 740 (2000);(decided under former Code 1933, § 38-314);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10).

Testimony properly excluded in the following cases.

- See Brooks v. State, 69 Ga. App. 697, 26 S.E.2d 549 (1943) (decided under former Code 1933, § 38-314); Elders v. State, 145 Ga. App. 139, 253 S.E.2d 817 (1979); Smith v. State, 247 Ga. 453, 276 S.E.2d 633 (1981) (decided under former Code 1933, § 38-314); Troy v. Interfinancial, Inc., 171 Ga. App. 763, 320 S.E.2d 872 (1984); Green v. State, 207 Ga. App. 800, 429 S.E.2d 169 (1993) (decided under former O.C.G.A. § 24-3-10); Adams v. State, 231 Ga. App. 279, 499 S.E.2d 105 (1998);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10);(decided under former O.C.G.A. § 24-3-10).

Testimony improperly excluded in the following cases.

- See Parrott v. Edwards, 113 Ga. App. 422, 148 S.E.2d 175 (1966) (decided under former Code 1933, § 38-314); Rini v. State, 236 Ga. 715, 225 S.E.2d 234; 429 U.S. 924, 97 S. Ct. 326, 50 L. Ed. 2d 293 (1976), cert. denied,(decided under former Code 1933, § 38-314).

History generally.

- Former statute was a mere codification of a well-settled principle in the law. While such evidence was hearsay, it was admitted as one of the exceptions to the rule against hearsay evidence on the ground of the extreme improbability of its falsity. Massee-Felton Lumber Co. v. Sirmans, 122 Ga. 297, 50 S.E. 92 (1905) (decided under former Civil Code 1895, § 5181).

Former Code 1933, § 38-309 had no application since the party seeking to give hearsay evidence was not a competent witness under former Code 1933, § 38-1603 (see now O.C.G.A. § 24-6-601). Bloodworth v. Taylor, 208 Ga. 770, 69 S.E.2d 747 (1952) (decided under former Code 1933, § 38-309); Dye v. Richards, 210 Ga. 601, 81 S.E.2d 820 (1954);(decided under former Code 1933, § 38-309).

Prerequisites.

- To render declaration or entries admissible, it must appear that the declarant is deceased, that the declarant possessed competent knowledge of the facts, or that it was his duty to know them, and the declarations were at variance with the declarant's interests. Field v. Boynton, 33 Ga. 239 (1862) (decided under former law); Murdock v. Adamson, 12 Ga. App. 275, 77 S.E. 181 (1913);(decided under former Civil Code 1910, § 5768).

Declarations of persons since deceased must be trustworthy before the declarations are admissible under the rule of necessity, and self-serving declarations are not admissible. Chrysler Motors Corp. v. Davis, 226 Ga. 221, 173 S.E.2d 691 (1970) (decided under former Code 1933, § 38-309).

Declarations of a decedent to others are admissible if there are no other witnesses to the alleged occurrence, it being for the jury, under appropriate instructions, to determine their weight and credibility. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981) (decided under former O.C.G.A. § 24-3-8).

Time of making declarations.

- Declarations are not admissible in behalf of a claimant, if made after the judgment was obtained or while the litigation was pending and with reference thereto. James v. Taylor, 93 Ga. 275, 20 S.E. 309 (1893) (decided under former law).

Nature of declarations.

- Declarations of one, whether verbal or in writing, of a matter which is against one's interest at the time, and who is since deceased, is admissible as evidence in a suit between third persons, whether such declaration relates to the present or past occurrences. Field v. Boynton, 33 Ga. 239 (1862) (decided under former law); Barbre v. Scott, 75 Ga. App. 524, 43 S.E.2d 760 (1947);(decided under former Code 1933, § 38-309).

Declaration containing statements both for and against declarant's interest.

- If the declaration or entry contains statements both in favor of the declarant and against the declarant's interest, the statements are to be balanced, and if those in favor of interest equal or preponderate over those against interest the declaration is not admissible; otherwise it is. Massee-Felton Lumber Co. v. Sirmans, 122 Ga. 297, 50 S.E. 92 (1905) (decided under former Civil Code 1895, § 5181).

If a declaration or entry contains statements both in favor of the declarant and against the declarant's interest, the statements are to be balanced, and if those in favor of interest equal or preponderate over those against interest, the declaration is not admissible. Mattison v. Travelers Indem. Co., 167 Ga. App. 521, 307 S.E.2d 39 (1983) (decided under former O.C.G.A. § 24-3-8).

Weight of evidence.

- Declarations or entries when admitted are evidence as to any fact stated therein which was within the knowledge of the declarant or which it was the declarant's duty to know. Massee-Felton Lumber Co. v. Sirmans, 122 Ga. 297, 50 S.E. 92 (1905) (decided under former Civil Code 1895, § 5181).

Cause of injury.

- Declaration by an injured party tending to exonerate the defendant is admissible. Georgia R.R. & Banking v. Fitzgerald, 108 Ga. 507, 34 S.E. 316, 49 L.R.A. 175 (1899) (decided under former Civil Code 1895, § 5181); Murdock v. Adamson, 12 Ga. App. 275, 77 S.E. 181 (1913);(decided under former Civil Code 1910, § 5768).

Declaration as to marriage.

- When equivocal conduct such as cohabitation is relied upon as a circumstance material to the issue to prove marriage, declarations of one of the parties since deceased, made pending the period of cohabitation, disaffirming the marriage, are admissible. Drawdy v. Hesters, 130 Ga. 161, 60 S.E. 451 (1905) (decided under former Civil Code 1895, § 5181).

Insurance.

- When an insurance policy is sued on by a creditor who was a beneficiary, a letter of the insured to a third person stating that the insured had not applied for any insurance is admissible. Chandler v. Mutual Life & Indus. Ass'n, 131 Ga. 82, 61 S.E. 1036 (1908) (decided under former Civil Code 1895, § 5181).

It was permissible for the defendant to prove that a few months before applying for the insurance the insured made to third persons declarations contrary to the facts stated in the application, the same being admissible as declarations of a person, since deceased, against the deceased's interest, and not made with a view to pending litigation. Henderson v. Jefferson Std. Life Ins. Co., 39 Ga. App. 609, 147 S.E. 901 (1929), overruled on other grounds, Lawler v. Life Ins. Co. of Ga., 90 Ga. App. 481, 83 S.E.2d 281 (1954) (decided under former Civil Code 1910, § 5768).

Parties to contracts.

- Testimony of a person other than the party to the contract that the person heard the deceased state that the person was going to will the deceased's property to the plaintiff is admissible. Brewer v. Mackey, 177 Ga. 813, 171 S.E. 273 (1933) (decided under former Code 1933, § 38-309).

In a personal injury case, to the extent that an employer implied or stated that a deceased employee agreed to make certain deliveries, those statements were admissible because alleged oral agreements by the decedent were considered against the decedent's interest. Thompson v. Club Group, Ltd., 251 Ga. App. 356, 553 S.E.2d 842 (2001) (decided under former O.C.G.A. § 24-3-8).

Proffer of declaration by beneficiary thereof.

- Decedent's declarations in disparagement of decedent's title would be admissible pursuant to former O.C.G.A. § 24-3-8, as the declarations negate the existence of a gift and are, therefore, against the decedent's pecuniary interest; that such declarations are proffered by one who would benefit from their admission into evidence is not a valid ground for excluding the declarations from the jury's consideration. Cole v. Cole, 205 Ga. App. 332, 422 S.E.2d 230 (1992) (decided under former O.C.G.A. § 24-3-8).

Parties and their privities.

- It is not necessary for purposes of former O.C.G.A. § 24-3-8 that a declarant be a party or in privity with a party. Horan v. Pirkle, 197 Ga. App. 151, 397 S.E.2d 734 (1990) (decided under former O.C.G.A. § 24-3-8).

Pending litigation.

- While a confessor to a crime may believe that litigation is impending, that one might well become involved in criminal proceedings as a result of one's confession, the possibility or probability of litigation does not translate into "pending" litigation as the term is used in former O.C.G.A. § 24-3-8. State Farm Auto. Ins. Co. v. Great Am. Ins. Co., 164 Ga. App. 457, 297 S.E.2d 355 (1982) (decided under former O.C.G.A. § 24-3-8).

When defendant's deceased brother had been fingerprinted and booked at the time he was interviewed by police, his statement, made with a view to litigation, was inadmissible. Jones v. State, 196 Ga. App. 842, 397 S.E.2d 181 (1990) (decided under former O.C.G.A. § 24-3-8).

Rule of necessity.

- Since deceased was the only eyewitness to events leading up to a fire, the deceased's out-of-court declarations in the form of the deceased's "trustworthy" deposition testimony are admissible as coming within the rule of necessity. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981) (decided under former O.C.G.A. § 24-3-8).

Dying declaration properly included in determination of sufficiency of evidence.

- Because a statement, which qualified as a dying declaration is admissible as an exception to the hearsay rule, the testimony regarding the victim's dying declarations was properly included in the supreme court's determination of the sufficiency of the evidence, as a whole, to support the convictions. Hager v. State, 297 Ga. 112, 772 S.E.2d 692 (2015)(decided under former O.C.G.A. § 24-3-6).

Declarations held inadmissible.

- See Hollis v. Sales, 103 Ga. 75, 29 S.E. 482 (1897) (decided under former Civil Code 1895, § 5181); State Banking Co. v. Miller, 185 Ga. 653, 196 S.E. 47 (1938); Martin v. Turner, 235 Ga. 35, 218 S.E.2d 789 (1975) (decided under former Code 1933, § 38-309); Crowder v. State, 237 Ga. 141, 227 S.E.2d 230 (1976); Cobb v. Garner, 158 Ga. App. 110, 279 S.E.2d 280 (1981) (decided under former Code 1933, § 38-309); Boehm v. Abi-Sarkis, 211 Ga. App. 181, 438 S.E.2d 410 (1993);(decided under former Code 1933, § 38-309);(decided under former O.C.G.A. § 24-3-8);(decided under former O.C.G.A. § 24-3-8).

Declarations held properly admitted.

- See Elwell v. New England Mtg. Sec. Co., 101 Ga. 496, 28 S.E. 833 (1897) (decided under former Civil Code 1895, § 5181); Holland v. Gunn, 171 Ga. 204, 154 S.E. 887 (1930);(decided under former Civil Code 1910, § 5768).

Trial counsel was not ineffective for failing to challenge the admission of testimony regarding the victim's dying declaration because the statement satisfied the requirements for admission of a dying declaration under former O.C.G.A. § 24-3-6; the defendant identified no valid basis for objection. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012) (decided under former O.C.G.A. § 24-3-6).

Victim's non-verbal statements to the victim's sibling and the victim's wife were admissible as dying declarations under former O.C.G.A. § 24-3-6 as the victim was conscious of the victim's dire condition at the time the victim made the non-verbal statements inculpating the defendant as the shooter as the victim prayed with the victim's spouse for forgiveness and died a few days later due to complications related to the multiple serious injuries. Wiggins v. State, 295 Ga. 684, 763 S.E.2d 484 (2014)(decided under former O.C.G.A. § 24-3-6).

Presumption.

- Until the contrary appears, every man is presumed to be cognizant of the law; and whenever admissions are made, as to the title of property, by the party in possession, the presumption is, that the statements were made, not only with a knowledge of the facts, but of the party's legal rights, also, growing out of those facts. Butler v. Livingston, 15 Ga. 565 (1854) (decided under former law).

Possession required.

- Statement by the alleged predecessor in title was properly rejected because it did not appear that at the time of making the admission referred to the party making the statement was in possession of the land. George v. Williams, 177 Ga. 630, 170 S.E. 790 (1933) (decided under former Code 1933, § 38-308).

Proof of privity required.

- Before the sayings of one person should be received in evidence against another, it ought to be clear beyond a reasonable doubt, that the other claims under him, or bears to him some relation of privity. Aiken v. Cato, 23 Ga. 154 (1857) (decided under former law).

Tax returns.

- Tax returns were held in the nature of declarations to show adverse possession. Smith v. Haire, 58 Ga. 446 (1877) (decided under former Code 1873, § 3774).

County property inventory purporting to include all property belonging to the county is in the nature of such a declaration. Ogden v. Dodge County, 97 Ga. 461, 25 S.E. 321 (1895) (decided under former Civil Code 1895, § 5180).

Testimony held not admissible.

- See Ehrlich v. Mills, 203 Ga. 600, 48 S.E.2d 107 (1948) (decided under former Code 1933, § 38-308); Turner v. McKee, 97 Ga. App. 531, 103 S.E.2d 658 (1958);(decided under former Code 1933, § 38-308).

Competency depends on time of making.

- Whether admissions made by defendant, while in possession of land levied on and claimed, in disparagement of defendant's title, are competent, depends, in some measure, upon the time when the admissions were made. If made before the commencement of the plaintiff's suit, the admissions would be admissible even in favor of the claimant. Powell v. Watts, 72 Ga. 770 (1884) (decided under former Code 1882, § 3774). Rountree v. Gaulden, 128 Ga. 737, 58 S.E. 346 (1907) See also (decided under former Civil Code 1895, § 5180).

Party privity required.

- While declarations by a person in possession of property, in disparagement of the person's own title, shall be admissible in evidence in favor of anyone and against privies, it was error to admit the testimony of a witness as to a statement made by someone else involved, which adjoined him, neither of these persons being in possession of the land and neither being in privity with either of the parties to the present proceeding. Morgan v. Lester, 215 Ga. 570, 111 S.E.2d 228 (1959) (decided under former Code 1933, § 38-308).

Declarations of a deceased person in disparagement of the deceased's title to land, made while in possession thereof, are admissible in evidence, not only against the declarant and those claiming under the declarant, but also for or against strangers. McLeod v. Swain, 87 Ga. 156, 13 S.E. 315 (1891) (decided under former Code 1882, § 3774); Hall v. Collier, 146 Ga. 815, 92 S.E. 536 (1917); McCrea v. Georgia Power Co., 179 Ga. 1, 174 S.E. 798 (1934) (decided under former Civil Code 1910, § 5767); 187 Ga. 708, 15 S.E.2d 664 (1939); Kimbrough v. Rutherford, 70 Ga. App. 294, 28 S.E.2d 370 (1943), later appeal,(decided under former Code 1933, § 38-308);(decided under former Code 1933, § 38-308).

Party having two distinct titles to property may disclaim one and rely entirely on the other, and after such election is made, the admissions of one's privies in the disclaimed title are not evidence against that one. Oliver v. Persons, 30 Ga. 391, 76 Am. Dec. 657 (1860) (decided under former Code 1863, § 3697).

Possessor of personal property.

- Declarations of one in possession of personal property, adverse to one's title, are evidence against a party holding under one by purchase subsequent to the making of such declarations. Doughty v. McMillan, 92 Ga. 818, 19 S.E. 59 (1894) (decided under former Code 1882, § 3774).

Party declaring against part interest.

- Declaration of one in possession of a lot of land, with a deed to the whole lot, that one did not claim a particular part of the land, is admissible in evidence against a privy of the declarant. Callaway v. Beauchamp, 147 Ga. 17, 92 S.E. 538 (1917) (decided under former Civil Code 1910, § 5767).

Declarations by a donor of land in favor of the donor's own title, made after the donor has delivered possession of the land to the donee, are not admissible in evidence against the latter. Declarations of a donor against the donor's title and in favor of that of the donee bind the donor and donor's privies in estate, and consequently are admissible in the donee's favor against one who derived title from the donor after the declarations were made. Ogden v. Dodge County, 97 Ga. 461, 25 S.E. 321 (1895) (decided under former Civil Code 1895, § 5180).

Admissions of trustee.

- If one was a continuing trustee, holding the legal title for the cestui que trust, one's admissions, while actually handling the subject matter of the trust, would be admissible. Knorr v. Raymond, 73 Ga. 749 (1884) (decided under former Code 1882, § 3774).

Declarations of an assignor were admissible if the declarations were made in disparagement of the assignor's title while the assignor was in possession. Wright v. Zeigler Bros., 70 Ga. 501 (1883) (decided under former Code 1882, § 3774).

Claim cases.

- In a claim case, the sayings of the defendant in execution while in possession, or of any other person in possession of the land, are evidence for the plaintiff in execution to show that the defendant, or such third person, was not the tenant of the claimant. Ozmore v. Hood & Kiddoo, 53 Ga. 114 (1874) (decided under former Code 1873, § 3774).

Declarations admissible for limited purpose.

- Declarations in favor of one's own title are admissible for no other purpose than to prove adverse possession. Rucker v. Rucker, 136 Ga. 830, 72 S.E. 241 (1911) (decided under former Civil Code 1910, § 5767).

Nature of predecessor's title.

- When a claimant relies upon statements of the claimant's father to show that the latter had purchased land with money of his wife, taking title thereto in his own name, declarations made by the father, while in possession of the land, that the land was not bought with money of his wife, but with his own funds, are admissible to show his adverse possession. Wallace v. Mize, 153 Ga. 374, 112 S.E. 724 (1922) (decided under former Civil Code 1910, § 5767).

Constitutionality.

- Admission of dying declarations does not contravene that provision of the Constitution of the United States which provides that the accused shall be confronted with the witnesses against the accused. Jones v. State, 130 Ga. 274, 60 S.E. 840 (1908) (decided under former Penal Code 1895, § 1000). Campbell v. State, 11 Ga. 353 (1852) See (decided under former law).

If the declarant did not die, the statement is not admissible as a dying declaration. Stembridge v. Georgia, 343 U.S. 541, 72 S. Ct. 834, 96 L. Ed. 1130 (1952).

Must be in prosecution for homicide of deceased.

- Declarations made by a person in extremis are not admissible as dying declarations except where the defendant is on trial for killing declarant. Wooten v. Wilkins, 39 Ga. 223, 99 Am. Dec. 456 (1869) (decided under former Code 1863, § 3704); Miliken v. State, 8 Ga. App. 478, 69 S.E. 915 (1910);(decided under former Penal Code 1895, § 1000).

Declarations, though made by a person in extremis, are not admissible as dying declaration in a homicide case since the defendant is not on trial for killing the declarant, though the declarant may have been killed in the transaction to which the trial relates. Westberry v. State, 175 Ga. 115, 164 S.E. 905 (1932) (decided under former Penal Code 1910, § 1026).

Dying declarations can be used by the accused for the purpose of showing the accused's innocence. Johnson v. State, 169 Ga. 814, 152 S.E. 76 (1930) (decided under former Penal Code 1910, § 1026).

Credibility of declarations.

- Even though all the conditions be satisfied still dying declarations should be received with great caution. Carter v. State, 2 Ga. App. 254, 58 S.E. 532 (1907) (decided under former Penal Code 1895, § 1000); Smith v. State, 9 Ga. App. 403, 71 S.E. 606 (1911);(decided under former Penal Code 1910, § 1026).

Evidence of a dying declaration should be received with great caution because first, the declarant is not under oath second, because the declarant is not subject to cross-examination third, because of the likelihood of its being misquoted and fourth, because although it is of a species of proof spoken of as an anomaly, and contrary to all the general rules of evidence, yet it has, where it is received, the greatest weight with juries. Hardy v. State, 76 Ga. App. 488, 46 S.E.2d 536 (1948) (decided under former Code 1933, § 38-307).

Ambiguous statements.

- When a statement is susceptible of two constructions, one that the declarant realized the declarant was in a dying condition and the other that the declarant might recover, and when the other circumstances are sufficient to show prima facie that the declarant was in the article of death and conscious of the declarant's condition, a declaration as to the cause of the declarant's death and the person who killed the declarant is not to be excluded because of such ambiguity. Parker v. State, 197 Ga. 340, 29 S.E.2d 61 (1944) (decided under former Code 1933, § 38-307).

Subsequent affirmations.

- Declarations not admissible because, at the time of making, the declarant did not believe declarant was going to die, may become admissible by subsequent affirmation since the declarations were referred to and affirmed as to their truth at the time when the declarant was conscious the declarant was dying. Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (decided under former Code 1933, § 38-307).

When victim makes same statement before and after awareness of impending death.

- There was no error in permitting the state's witnesses to testify about the victim's statement, made prior to the time that the victim was aware of the victim's impending death, about who had beaten the victim, since there was evidence that the victim later made the same statement while fully aware of the victim's impending death. Wright v. State, 254 Ga. 484, 330 S.E.2d 358 (1985) (decided under former O.C.G.A. § 24-3-6).

Former dead man's statute rendered a witness incompetent to testify as to a conversation with a person since deceased regardless of whether the testimony might be admissible under other rules of evidence. Willis v. Kennedy, 267 Ga. 165, 476 S.E.2d 246 (1996) (decided under former O.C.G.A. § 24-3-9).

Testimony of friend of deceased murder victim admissible.

- In a malice murder case, the trial court did not abuse the court's discretion by finding that a statement by a murder victim's close, personal friend that the victim told the friend that the victim intended and was making arrangements to separate from the defendant and force the defendant to move out of their home was admissible under the necessity exception to the hearsay rule because the victim shared personal confidences with the friend and, therefore, the statement exhibited a particularized guarantee of trustworthiness. McNaughton v. State, 290 Ga. 894, 725 S.E.2d 590 (2012) (decided under former O.C.G.A. § 24-3-1).

Exclusion as fragmentary and incomplete.

- Dying declaration which was uncompleted because the declarant' became unconscious before finishing the declarant's statement is not thereby rendered inadmissible. But if it appears that the statement was intended by the declarant to be connected with and qualified by other statements which from any cause the declarant was prevented from making, the statement should be excluded as fragmentary and incomplete. Kalb v. State, 195 Ga. 544, 25 S.E.2d 24 (1943), overruled on other grounds, 237 Ga. 471, 228 S.E.2d 860 (1976) (decided under former Code 1933, § 38-307).

Telling of less than full knowledge.

- If a dying person finishes the statement the person wishes to make, it is no objection to the statement's admissibility as a dying declaration that the person told only a portion of what the person might have been able to tell. A distinct statement of facts meets the requirement of completeness. Kalb v. State, 195 Ga. 544, 25 S.E.2d 24 (1943), overruled on other grounds, 237 Ga. 471, 228 S.E.2d 860 (1976) (decided under former Code 1933, § 38-307).

Failure to use full name.

- Dying declarations sought to be admitted were not objectionable because the full name of the defendant was not stated, there being other evidence to show that the name used by the deceased referred to the accused. Emmett v. State, 195 Ga. 517, 25 S.E.2d 9, cert. denied, 320 U.S. 774, 64 S. Ct. 76, 88 L. Ed. 464 (1943), overruled on other grounds, 237 Ga. 471, 228 S.E.2d 860 (1976) (decided under former Code 1933, § 38-307).

Fact that the deceased in the deceased's dying declaration did not call the full name of the defendant does not render this evidence inadmissible when taken in connection with the other evidence that there was no other person present at the time of the homicide with such name. Patterson v. State, 199 Ga. 773, 35 S.E.2d 504 (1945) (decided under former Code 1933, § 38-307).

Since the victim's dying declaration referred to a woman at the scene of a crime, and since the state established that the defendant was the only woman present when the victim was killed, the victim's failure to use her name does not render the victim's statement inadmissible. Dixon v. State, 243 Ga. 46, 252 S.E.2d 431 (1979) (decided under former Code 1933, § 38-307).

Must be certain and definite.

- All vague and indefinite expressions, all language that does not distinctly point to the cause of death, and death's attending circumstances, but requires to be aided by supposition or inference in order to establish facts tending to criminate the respondent should be held inadmissible. Mitchell v. State, 71 Ga. 128 (1883) (decided under former Code 1882, § 3781); Odom v. State, 13 Ga. App. 687, 79 S.E. 858 (1913);(decided under former Penal Code 1910, § 1026).

Must be as to facts.

- Dying declarations are competent, provided the declarations do not amount to the mere expression of an opinion by the deceased as to the cause and manner of the declarant's death. The rule of law is that a dying declaration to be admissible must consist of a statement of a matter of fact, and a declaration which amounts to the mere expression of an opinion by the person making it should not be received in evidence. White v. State, 100 Ga. 659, 28 S.E. 423 (1897) (decided under former Penal Code 1895, § 1000).

Presumption of personal knowledge.

- When want of knowledge does not appear either from the statement itself or from other evidence in the case, it must be presumed that the declarant stated a fact within the declarant's knowledge. In these circumstances, it was a question for the jury whether the declaration represented the primary knowledge of the deceased or merely the deceased's opinion. Strickland v. State, 167 Ga. 452, 145 S.E. 879 (1928) (decided under former Penal Code 1910, § 1026); Hawkins v. State, 213 Ga. 749, 101 S.E.2d 710 (1959);(decided under former Code 1933, § 38-307).

But not strictly limited.

- Dying declaration is not strictly limited to the physical cause of death and the identity of the killer but may include the res gestae of the homicide as part of the cause of death. McAllister v. State, 246 Ga. 246, 271 S.E.2d 159 (1980) (decided under former Code 1933, § 38-307).

Dying declarations admissible to prove any relevant fact embraced in the res gestae of the killing. Wilkerson v. State, 91 Ga. 729, 17 S.E. 990, 44 Am. St. R. 63 (1893) (decided under former Code 1882, § 3781). Bush v. State, 109 Ga. 120, 34 S.E. 298 (1899) See Rozier v. State, 197 Ga. 420, 29 S.E.2d 602 (1944) (decided under former Penal Code 1895, § 1000);(decided under former Code 1933, § 38-307).

Relation required.

- Dying declarations must relate to the cause of death or the person who killed the deceased in order to be admissible. Rozier v. State, 197 Ga. 420, 29 S.E.2d 602 (1944) (decided under former Code 1933, § 38-307).

Proper parts of res gestae.

- Every fact or circumstance shedding light upon the transaction, including such conversation and conduct of the parties as are properly parts of the res gestae of the homicide, may lawfully go to the jury in a dying declaration made by the deceased. Taylor v. State, 120 Ga. 857, 48 S.E. 361 (1904) (decided under former Penal Code 1895, § 1000); Harris v. State, 142 Ga. 627, 83 S.E. 514 (1914); Rozier v. State, 197 Ga. 420, 29 S.E.2d 602 (1944) (decided under former Penal Code 1910, § 1026);(decided under former Code 1933, § 38-307).

Conclusions based on appearances.

- When a declaration by the declaration's terms, taken in connection with the circumstances, merely expresses the declarant's belief as to the identity of the guilty person, it should be excluded; however, if the declarant sees the declarant's assailant or assailants, and from appearances which the declarant may describe the declarant draws a conclusion as to the assailant's identity, it is admissible. Hawkins v. State, 213 Ga. 749, 101 S.E.2d 710 (1958) (decided under former Code 1933, § 38-307).

Question of fact.

- When the evidence did not show that it was impossible for the deceased to have seen the person who shot the deceased, it was a question of fact for the jury to determine whether the deceased had personal knowledge of the assailant's identity. Hawkins v. State, 213 Ga. 749, 101 S.E.2d 710 (1958) (decided under former Code 1933, § 38-307).

Not rebuttal of other evidence.

- If preliminary statement made by the deceased as to the deceased's condition, in answer to questions, could be construed as lacking definiteness as a statement that the deceased was conscious of the fact that the deceased was going to die, this would not necessarily rebut the other evidence and circumstances from which it could have been inferred that the deceased believed the deceased would die. Davis v. State, 204 Ga. 467, 50 S.E.2d 604 (1948) (decided under former Code 1933, § 38-307).

Officer's questioning of dying victim.

- Trial court did not abuse the court's discretion in overruling the defendant's objection to an officer's testimony that the victim said that the victim thought that the defendant had shot the victim since they had been in a relationship that ended because the officer responded to the emergency situation, found the fatally wounded victim, and asked the victim what happened in order to assess the exigencies; also, the officer wanted to keep the victim talking in order to keep the victim from losing consciousness before emergency responders arrived. Sanford v. State, 287 Ga. 351, 695 S.E.2d 579 (2010), cert. denied, 131 S. Ct. 1514, 179 L. Ed. 2d 336 (2011) (decided under former O.C.G.A. § 24-3-6).

Must be conscious of condition.

- It must appear to the court that there was a probability that the deceased was conscious of the deceased's impending death at the time of making the dying declarations. Walton v. State, 79 Ga. 446, 5 S.E. 203 (1887) (decided under former Code 1882, § 3781); Young v. State, 114 Ga. 849, 40 S.E. 1000 (1902); Crews v. State, 44 Ga. App. 546, 162 S.E. 146 (1932) (decided under former Penal Code 1895, § 1000); Gibbs v. State, 190 Ga. 207, 9 S.E.2d 248 (1940); Freeman v. State, 233 Ga. 745, 213 S.E.2d 643 (1975) (decided under former Penal Code 1910, § 1026);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307).

Means unimportant.

- It does not matter how or by what means the deceased becomes conscious that the deceased is dying. Smith v. State, 9 Ga. App. 403, 71 S.E. 606 (1911) (decided under former Penal Code 1910, § 1026).

Declarations of a person since deceased are admissible to show that the person was conscious of the person's dying condition. Jenkins v. State, 190 Ga. 556, 9 S.E.2d 909 (1940) (decided under former Code 1933, § 38-307).

Statement of recovery hopes most common.

- Most common way to determine whether or not the deceased was conscious of impending death at the time of making the declaration is to look at the deceased's statement concerning the deceased's hope of recovery. Wallace v. State, 90 Ga. 117, 15 S.E. 700 (1892) (decided under former Code 1882, § 3781).

Consciousness may be inferred.

- Consciousness on the part of the deceased that the deceased was dying and was actually in extremis may be inferred, not only from the deceased's statements, but also from the nature of the wound and other circumstances. Smith v. State, 110 Ga. 255, 34 S.E. 204 (1899) (decided under former Penal Code 1895, § 1000); Young v. State, 114 Ga. 849, 40 S.E. 1000 (1902); Jefferson v. State, 137 Ga. 382, 73 S.E. 499 (1912) (decided under former Penal Code 1895, § 1000); Johnson v. State, 169 Ga. 814, 152 S.E. 76 (1930); Crews v. State, 44 Ga. App. 546, 162 S.E. 146 (1932) (decided under former Penal Code 1910, § 1026); Keith v. State, 175 Ga. 385, 165 S.E. 262 (1932); McCullough v. State, 177 Ga. 315, 170 S.E. 220 (1933) (decided under former Penal Code 1910, § 1026); Simmons v. State, 181 Ga. 761, 184 S.E. 291 (1936); Rouse v. State, 183 Ga. 551, 188 S.E. 904 (1936) (decided under former Penal Code 1910, § 1026); Etheridge v. State, 187 Ga. 30, 199 S.E. 185 (1938); Satterfield v. State, 68 Ga. App. 7, 21 S.E.2d 861 (1942) (decided under former Penal Code 1910, § 1026); Emmett v. State, 195 Ga. 517, 25 S.E.2d 9; 320 U.S. 774, 64 S. Ct. 76, 88 L. Ed. 464 (1943) (decided under former Penal Code 1910, § 1026); Howard v. State, 237 Ga. 471, 228 S.E.2d 860 (1976); Patterson v. State, 199 Ga. 773, 35 S.E.2d 504 (1945) (decided under former Code 1933, § 38-307); Hardy v. State, 76 Ga. App. 488, 46 S.E.2d 536 (1948); Davis v. State, 204 Ga. 467, 50 S.E.2d 604 (1948); Stembridge v. State, 82 Ga. App. 214, 60 S.E.2d 491 (1950), for comment, see 1 Ga. B.J. 49 (1939) (decided under former Code 1933, § 38-307); Norris v. State, 258 Ga. 889, 376 S.E.2d 653 (1989);cert. denied,overruled on other grounds,(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former O.C.G.A. § 24-3-6).

With regard to a defendant's conviction for malice murder, the trial court did not err by admitting into evidence statements that the victim made to friends who found the victim wounded that the same person who had accused the victim of committing a robbery earlier in the day (the defendant) was the same person who shot the victim. The victim had lost consciousness after no longer being able to walk after having suffered a gunshot wound to the chest and was found several hours later fully knowing of the need of immediate medical attention; therefore, a prima facie showing for the admission of the victim's statements as dying declarations was established. Ventura v. State, 284 Ga. 215, 663 S.E.2d 149 (2008) (decided under former O.C.G.A. § 24-3-6).

Identification testimony of murder victim who had suffered third-degree burns over 95 percent of the victim's body, and was aware of the victim's impending death at the time the identification was made, was properly admitted. Norris v. State, 258 Ga. 889, 376 S.E.2d 653 (1989) (decided under former O.C.G.A. § 24-3-6).

Consciousness of impending death may be inferred from the declarant's statements, the nature of declarant's wounds, and other circumstances. Early v. State, 170 Ga. App. 158, 316 S.E.2d 527 (1984) (decided under former O.C.G.A. § 24-3-6).

Asking for physician.

- Fact that the deceased whose last statements were sought to be admitted, might have asked for a doctor does not establish, and might not of itself be taken in the mind of the jury as in any way indicating that the deceased was unaware of the deceased's dying condition, since it is but natural that even a dying man could wish to be attended by a physician. Patterson v. State, 199 Ga. 773, 35 S.E.2d 504 (1945) (decided under former Code 1933, § 38-307).

Notwithstanding that a physician informed the declarant that there was a chance for the declarant to recover, declarations were held admissible. Bryant v. State, 80 Ga. 272, 4 S.E. 853 (1887) (decided under former Code 1882, § 3781).

Officer's reassurance to victim did not preclude admission.

- Fact that victim asked whether the victim was going to die, the victim's knowledge of the serious gunshot wound, the occurrence of the victim's death within a matter of hours, and the victim's great pain established a prima facie case that the victim realized that death was impending and, therefore, the ultimate determination was for the jury; the police officer's reassurance of the victim did not preclude admission of the dying declaration. Morgan v. State, 275 Ga. 222, 564 S.E.2d 192 (2002) (decided under former O.C.G.A. § 24-3-6).

Victim conscious of critical condition.

- Trial court did not err in admitting into evidence statements the victim made to an officer that the defendant shot the victim because the circumstances made a prima facie showing for the admission of the statements as the victim's dying declarations when the victim was conscious of the victim's critical condition at the time the victim made the statements; it was apparent that the victim's wounds were extremely serious, the victim was clutching a pillow to the victim's abdomen for comfort, the victim's breathing was "stressed", the victim was in great pain, and the victim appeared to be overwhelmed with fear. Sanford v. State, 287 Ga. 351, 695 S.E.2d 579 (2010), cert. denied, 131 S. Ct. 1514, 179 L. Ed. 2d 336 (2011) (decided under former O.C.G.A. § 24-3-6).

Declarations were held admissible despite length of survival in the following cases.

- See Johnson v. State, 169 Ga. 814, 152 S.E. 76 (1930) (survived three weeks after declaration) (decided under former Penal Code 1910, § 1026); Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (survived several days after declaration which was made 11 months after shooting) (decided under former Code 1933, § 38-307); Miles v. State, 182 Ga. 75, 185 S.E. 286 (1936) (survived 33 or 34 days after declaration) (decided under former Code 1933, § 38-307); Emmett v. State, 195 Ga. 517, 25 S.E.2d 9, cert. denied, 320 U.S. 774, 64 S. Ct. 76, 88 L. Ed. 464 (1943), overruled on other grounds, 237 Ga. 471, 228 S.E.2d 860 (1976) (decided under former Code 1933, § 38-307).

Long intervals evidence of state of mind.

- Fact that death does not immediately follow the declaration will not render evidence of the declaration inadmissible as a matter of law; although, if the interval is long, this fact may be some evidence that the declarant had not despaired of recovery. Emmett v. State, 195 Ga. 517, 25 S.E.2d 9, cert. denied, 320 U.S. 774, 64 S. Ct. 76, 88 L. Ed. 464 (1943), overruled on other grounds, 237 Ga. 471, 228 S.E.2d 860 (1976) (decided under former Code 1933, § 38-307).

Lapse of time between the declaration and the time of death may be some evidence that the declarant has not despaired of recovery, but it is not controlling. Early v. State, 170 Ga. App. 158, 316 S.E.2d 527 (1984) (decided under former O.C.G.A. § 24-3-6).

Fact that victim survived 54 days following the victim's declaration did not make declaration inadmissible. Early v. State, 170 Ga. App. 158, 316 S.E.2d 527 (1984) (decided under former O.C.G.A. § 24-3-6).

Affirmative proof not required.

- It is not, in order to render dying declarations admissible in evidence upon a trial for murder, essential for the state to show that the declarant affirmatively said the declarant was in a dying condition or used language of like import. Gibson v. State, 52 Ga. App. 297, 183 S.E. 83 (1935) (decided under former Code 1933, § 38-307); Parker v. State, 197 Ga. 340, 29 S.E.2d 61 (1944); Ayers v. State, 215 Ga. 325, 110 S.E.2d 669 (1959) (decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307).

Only prima facie evidence needed.

- In order to submit a dying declaration to the jury it is only necessary for the state to submit facts which prima facie prove that the deceased was in the article of death at the time of the statement and that the deceased was conscious of impending death. Dumas v. State, 62 Ga. 58 (1878) (decided under former Code 1873, § 3781); Mitchell v. State, 71 Ga. 128 (1883); Walton v. State, 79 Ga. 446, 5 S.E. 203 (1887) (decided under former Code 1882, § 3781); Bird v. State, 128 Ga. 253, 57 S.E. 320 (1907); Moody v. State, 1 Ga. App. 772, 58 S.E. 262 (1907) (decided under former Code 1882, § 3781); Hawkins v. State, 141 Ga. 212, 80 S.E. 711 (1914); Green v. State, 154 Ga. 117, 113 S.E. 536 (1922) (decided under former Penal Code 1895, § 1000); Faulkner v. State, 166 Ga. 645, 144 S.E. 193 (1928); Johnson v. State, 169 Ga. 814, 152 S.E. 76 (1930) (decided under former Penal Code 1895, § 1000); Gibbs v. State, 41 Ga. App. 574, 153 S.E. 613 (1930); Crews v. State, 44 Ga. App. 546, 162 S.E. 146 (1932) (decided under former Penal Code 1910, § 1026); Rounds v. State, 174 Ga. 308, 162 S.E. 696 (1932); McCullough v. State, 177 Ga. 315, 170 S.E. 220 (1933) (decided under former Penal Code 1910, § 1026); Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936); Sisk v. State, 182 Ga. 448, 185 S.E. 777 (1936) (decided under former Penal Code 1910, § 1026); Etheridge v. State, 187 Ga. 30, 199 S.E. 185 (1938); Simmons v. State, 181 Ga. 761, 184 S.E. 291 (1939) (decided under former Penal Code 1910, § 1026); Satterfield v. State, 68 Ga. App. 7, 21 S.E.2d 861 (1942); Parker v. State, 197 Ga. 340, 29 S.E.2d 61 (1944) (decided under former Penal Code 1910, § 1026); Stembridge v. State, 82 Ga. App. 214, 60 S.E.2d 491 (1950); Carter v. State, 227 Ga. 788, 183 S.E.2d 392 (1971) (decided under former Penal Code 1910, § 1026);(decided under former Penal Code 1910, § 1026);(decided under former Penal Code 1910, § 1026);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);for comment, see 1 Ga. B.J. 49 (1939) (decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307).

Decedent's declarations admissible as foundation.

- While testimony of decedent's spouse as to decedent's declarations to the spouse did not indicate the cause of the decedent's death or the person who killed the decedent, but strongly tended to show that the decedent was in a dying condition and was conscious thereof, the statements were admissible to support other declarations made by the decedent to other persons in which the decedent had indicated, not only consciousness of the decedent's dying condition, but facts going to show the cause of the decedent's death and the person who killed the decedent. Gibbs v. State, 190 Ga. 207, 9 S.E.2d 248 (1940) (decided under former Code 1933, § 38-307).

Evidence was sufficient to authorize admission of statements as dying declarations in the following cases.

- White v. State, 100 Ga. 659, 28 S.E. 423 (1897) (decided under former Penal Code 1895, § 1000); Lee v. State, 2 Ga. App. 481, 58 S.E. 676 (1907); Faulkner v. State, 166 Ga. 645, 144 S.E. 193 (1928) (decided under former Penal Code 1895, § 1000); Etheridge v. State, 187 Ga. 30, 199 S.E. 185 (1938); Jenkins v. State, 190 Ga. 556, 9 S.E.2d 909 (1940) (decided under former Penal Code 1910, § 1026); Davis v. State, 204 Ga. 467, 50 S.E.2d 604 (1948); Hubbard v. State, 208 Ga. 472, 67 S.E.2d 562 (1951) (decided under former Code 1933, § 38-307); Lee v. State, 211 Ga. 170, 84 S.E.2d 353 (1954); Phillips v. State, 260 Ga. 742, 399 S.E.2d 202 (1991) (decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307);(decided under former O.C.G.A. § 24-3-6).

Declarations were erroneously admitted in the following cases.

- See Lyens v. State, 133 Ga. 587, 66 S.E. 792 (1909) (decided under former Penal Code 1895, § 1000); Howard v. State, 144 Ga. 169, 86 S.E. 540 (1915);(decided under former Penal Code 1910, § 1026).

All evidence from same witness not required.

- It is not necessary that the testimony relating to declarations by the deceased as to the cause of the deceased's death, the person who killed the deceased, the deceased's dying condition, and the deceased's consciousness of such fact at the time the declarations were made, should come from the same witness. Gibbs v. State, 190 Ga. 207, 9 S.E.2d 248 (1940) (decided under former Code 1933, § 38-307).

Individual testimony requirements.

- It was not necessary that the testimony of each witness should disclose that the deceased was in a dying condition and conscious thereof, in order for such testimony to be admissible, but it was permissible to lay the foundation by other witnesses. Emmett v. State, 195 Ga. 517, 25 S.E.2d 9, cert. denied, 320 U.S. 774, 64 S. Ct. 76, 88 L. Ed. 464 (1943), overruled on other grounds, 237 Ga. 471, 228 S.E.2d 860 (1976) (decided under former Code 1933, § 38-307).

Grandmother's testimony admissible due to forfeiture-by-wrongdoing.

- Trial court did not err by admitting into evidence statements made by the defendant's grandmother to police pursuant to the forfeiture-by-wrongdoing exception to the rule against hearsay because the defendant sent correspondence to the grandmother calling the grandmother a snitch and screamed at the grandmother not to talk to the state or say anything to the point where the grandmother was shaking and claimed not to remember the statement to police. Hendrix v. State, 303 Ga. 525, 813 S.E.2d 339 (2018).

Bad character of deceased.

- On a trial for murder, when dying declarations of the deceased have been introduced against the accused, it is competent for the latter to impeach these declarations by showing that the deceased, because of general bad character, was unworthy of belief. Redd v. State, 99 Ga. 210, 25 S.E. 268 (1896) (decided under former Penal Code 1895, § 1000); Johnson v. State, 169 Ga. 814, 152 S.E. 76 (1930);(decided under former Penal Code 1910, § 1026).

Conflicting statements.

- Statements of the deceased in conflict with proved dying declarations, if any have been made, are admissible. Johnson v. State, 169 Ga. 814, 152 S.E. 76 (1930) (decided under former Penal Code 1910, § 1026); Keith v. State, 175 Ga. 385, 165 S.E. 262 (1932);(decided under former Penal Code 1910, § 1026).

Contents of instructions.

- Better practice when charging on the question of dying declarations to charge substantially in the language of the former statute, without explaining to the jury why such declarations were admitted. Hubbard v. State, 208 Ga. 472, 67 S.E.2d 562 (1951) (decided under former Code 1933, § 38-307).

Decedent's condition.

- Jury should be instructed that the statements attributed to the deceased should be received and considered with great caution, and should have no weight unless the jury is satisfied from the evidence that such statements were made by the deceased at a time when the deceased was in a dying condition, and that the deceased was at that time conscious that the deceased was dying. Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (decided under former Code 1933, § 38-307).

When defendant made no objection to the admission of testimony as to statements of murder victim on the ground that it was not shown that such declarations of the deceased were conscious utterances in the apprehension and immediate prospect of death, and the witness who testified to the statement also testified that victim was in a dying condition and knew that the victim was, court did not err in refusing a new trial merely because the court made no reference in the court's charge to dying declarations, and did not charge the jury that the alleged dying statement was admitted by the court prima facie and that before the jury could receive it and act upon the declaration they must believe that the declaration was made by the deceased in the article of death and when the deceased was conscious of the deceased's condition. Allen v. State, 187 Ga. 178, 200 S.E. 109 (1938) (decided under former Code 1933, § 38-307).

Credibility.

- While the testimony of a witness, whose evidence goes to the jury through the medium of dying declarations, is to be considered under the same rules that govern them in determining the credibility of other witnesses who testify from the stand, the failure of the judge to charge upon the subject of such rules will not be a sufficient reason for granting a new trial, in the absence of an appropriate and timely written request asking instructions upon the subject. Carter v. State, 227 Ga. 788, 183 S.E.2d 392 (1971) (decided under former Code 1933, § 38-307).

Admission over objection.

- When testimony relating to a dying declaration of the decedent is received in evidence and no objection is made thereto, it is not error for the court to give in charge to the jury the legal principles applicable to dying declarations. Craig v. State, 55 Ga. App. 207, 189 S.E. 727 (1937) (decided under former Code 1933, § 38-307).

Proof beyond reasonable doubt.

- It was error for the court, when the defendant personally introduced dying declarations as an affirmative defense, to instruct the jury in effect that the jury would have to be satisfied beyond a reasonable doubt that the deceased was, at the time the deceased made such declarations, in the article of death and conscious of the deceased's condition. Poole v. State, 47 Ga. App. 303, 170 S.E. 309 (1933) (decided under former Penal Code 1910, § 1026).

Failure to instruct.

- Failure of the court to add, in addition to other instructions given upon the subject of dying declarations, the further instruction that the dying declaration must be received with caution, is not reversible error. Key v. State, 177 Ga. 329, 170 S.E. 230 (1933) (decided under former Penal Code 1910, § 1026).

When in a homicide prosecution during colloquy between counsel and the trial judge with reference to admission of dying declaration the court stated that the court would charge the jury on dying declarations, but nothing further was said by counsel or the court pertaining to the evidence of a dying declaration, it was not reversible error to fail to charge the former statute. Dudley v. State, 67 Ga. App. 256, 19 S.E.2d 833 (1942) (decided under former Code 1933, § 38-307).

Failure of the court to instruct the jury as to the jury's consideration of dying declarations is not cause for a new trial since the state does not rely for conviction solely on dying declarations, and since there is no appropriate and timely written request for instructions as to dying declarations. Murray v. State, 214 Ga. 350, 104 S.E.2d 905 (1958) (decided under former Code 1933, § 38-307).

When the state relies solely on a dying declaration, it is error to fail to instruct the jury thereon. Holcomb v. State, 249 Ga. 658, 292 S.E.2d 839 (1982) (decided under former O.C.G.A. § 24-3-6).

When the trial court fails to properly instruct the jury as to the jury's consideration of statements preliminarily admitted by the court as dying declarations, the error is not cause for a new trial since the state does not rely for conviction solely on dying declarations and since there is no appropriate and timely written request for instructions as to the declarations. Kitchens v. State, 256 Ga. 1, 342 S.E.2d 320 (1986) (decided under former O.C.G.A. § 24-3-6).

Ultimate determination.

- When the foundation for a declaration has been prima facie established, the evidence is properly admitted, and the ultimate determination as to whether the person making the declaration was in articulo mortis and realized that death was impending, is a matter for the jury. Freeman v. State, 112 Ga. 48, 37 S.E. 172 (1900) (decided under former Penal Code 1895, § 1000); Darby v. State, 22 Ga. App. 606, 96 S.E. 707 (1918); Gibbs v. State, 41 Ga. App. 574, 153 S.E. 613 (1930) (decided under former Penal Code 1910, § 1026); McCullough v. State, 177 Ga. 315, 170 S.E. 220 (1933); Cooper v. State, 182 Ga. 42, 184 S.E. 716 (1936) (decided under former Penal Code 1910, § 1026); Etheridge v. State, 187 Ga. 30, 199 S.E. 185 (1938); Simmons v. State, 181 Ga. 761, 184 S.E. 291 (1939) (decided under former Penal Code 1910, § 1026); Satterfield v. State, 68 Ga. App. 7, 21 S.E.2d 861 (1942); Emmett v. State, 195 Ga. 517, 25 S.E.2d 9 (decided under former Code 1933, § 38-307); 320 U.S. 774, 64 S. Ct. 76, 88 L. Ed. 464 (1943); 237 Ga. 471, 228 S.E.2d 860 (1976), for comment, see 1 Ga. B.J. 49 (1939) (decided under former Code 1933, § 38-307); Carter v. State, 227 Ga. 788, 183 S.E.2d 392 (1971);(decided under former Code 1933, § 38-307);cert. denied,overruled on other grounds,(decided under former Code 1933, § 38-307);(decided under former Code 1933, § 38-307).

Weight of declarations.

- Circumstances surrounding a dying declaration are matters which may properly be considered by the jury in determining the weight to be given to the declaration. Hubbard v. State, 208 Ga. 472, 67 S.E.2d 562 (1951).

Boundary lines.

- Declarations of deceased individuals who do not appear to have any motive to misrepresent are properly received in evidence, at least in the case of private boundaries. Waddell v. Cole, 138 Ga. App. 15, 225 S.E.2d 491 (1976) (decided under former Code 1933, § 38-311).

Declarations as to the location of the property line by the deceased husband were competent evidence of the line and landmarks thereon since this line had been claimed as the true line and was at least impliedly agreed to by the deceased husband. Banks v. Myrick, 149 Ga. App. 252, 253 S.E.2d 873 (1979) (decided under former Code 1933, § 38-311).

Actions to quiet title.

- In an action to quiet title to real property, testimony about a rock foundation being the location of the family home was admissible under former O.C.G.A. § 24-3-9 (see now O.C.G.A. § 24-8-803). Resseau v. Bland, 268 Ga. 634, 491 S.E.2d 809 (1997) (decided under former O.C.G.A. § 24-3-9).

In general.

- Sayings of one who is not a party to the case, or in privity with a party, are not admissible as evidence against either party. Bailey v. E.F. Wood & Co., 24 Ga. 164 (1858) (decided under former law); Chastain & Luck v. Robinson, 30 Ga. 55 (1860);(decided under former law).

When admission by person not a party to action is admissible.

- Rule, as to parties to a suit, is that a plea of guilty may be shown as an admission against interest; admissions by persons not a party to an action, however, are admissible in evidence only if the party making the admission is the real party in interest, although not a party to the record, or if a party to the record refers another to such third party for information, or if there is an admission by a third person against that person's interest as to a fact collateral to the main issue between the litigants but essential to the adjudication of the cause. Cobb v. Garner, 158 Ga. App. 110, 279 S.E.2d 280 (1981) (decided under former Code 1933, § 38-405).

Third party's plea was admissible under former O.C.G.A. § 24-3-35(2) as a third-party admission because the third party's fault had properly been made an issue under O.C.G.A. § 51-12-33. Woods v. Allied Van Lines, Inc., 316 Ga. App. 548, 730 S.E.2d 35 (2012) (decided under former O.C.G.A. § 24-3-35).

Referral for information.

- When certain documentary evidence is offered, which upon its face is not admissible, but is claimed to be admissible, it is not error to exclude such evidence when there is no evidence to show that either party had referred the other to the author of the evidence for information. Myers v. Adcock, 198 Ga. 180, 31 S.E.2d 160 (1944) (decided under former Code 1933, § 38-405).

Information sought to be elicited from a witness as to the location of boundary line, having been obtained from another at the suggestion of one not a party to the case, was properly rejected by the trial court as hearsay, and was not admissible. Palmer v. Jackson, 86 Ga. App. 642, 72 S.E.2d 130 (1952) (decided under former Code 1933, § 38-405).

Collateral to main issue.

- Whatever may be meant by the language "collateral to the main issue but essential to the adjudication," it is certainly not applicable if the statement bears directly upon the main issue in the case. Lewis v. American Rd. Ins. Co., 119 Ga. App. 507, 167 S.E.2d 729 (1969) (decided under former Code 1933, § 38-405).

Collateral to main issue not found.

- Extrajudicial admission of employee, who was not a party to the indemnity contract, nor a party to the suit, was not admissible as an admission by a stranger to the suit bearing upon a collateral issue essential to the adjudication as the admission was not collateral to the main issue involved, but bore directly upon the issue. Glens Falls Indem. Co. v. Gottlieb, 80 Ga. App. 634, 56 S.E.2d 799 (1949) (decided under former Code 1933, § 38-405).

Letters.

- There being evidence to authorize a finding by the jury that a conspiracy had existed as alleged, and it appearing from the uncontradicted testimony of the plaintiff that, during the existence of the conspiracy, one of the conspirators had referred the plaintiff to a third person, a stranger to the suit, for certain information connected with the subject matter of the conspiracy, it was not error to admit in evidence letters from the third person, pertaining to such information. Hill v. Reynolds, 19 Ga. App. 334, 91 S.E. 434 (1917) (decided under former Civil Code 1910, § 5778).

Carbon copies of two letters written by parties to a case to one not a party, which were not otherwise admissible, were not admissible when there was nothing to show that either of the parties had referred the other to the letter's recipient for information. The fact that one of the parties was seeking information about the other did not bring the letter within the former statute, and the letter would merely constitute hearsay evidence. Myers v. Adcock, 198 Ga. 180, 31 S.E.2d 160 (1944) (decided under former Code 1933, § 38-405).

Title to account.

- Plaintiff's contention being that the account sued upon was plaintiff's account, and the defendants contending that it was contracted with and belonged to others who were not parties to the suit, and there being no assignment of the account in writing, it was not competent for the plaintiff to prove oral admissions made by these strangers to the suit that the account belonged to the plaintiff, and that these strangers had no interest in the account. Churchman, Williams & Co. v. Robinson, 93 Ga. 731, 20 S.E. 215 (1894) (decided under former Code 1882, § 3786).

Entry on minutes of third party insurance company.

- In an action upon a benefit certificate, an entry upon the minutes of another association to which the deceased had applied for a benefit certificate was not, in such a trial, admissible against the plaintiff, it not being shown that the deceased had anything to do with the making of this entry. Supreme Conclave Knights of Damon v. O'Connell, 107 Ga. 97, 32 S.E. 946 (1899) (decided under former Civil Code 1895, § 5191).

An affidavit by a shooting victim urging nonprosecution of her defendant husband was not competent evidence. Freeman v. State, 233 Ga. 745, 213 S.E.2d 643 (1975) (decided under former Code 1933, § 38-405).

Criminal confessions.

- Statements by a third party to the effect that the third party, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused upon the accused's trial, nor does the fact that the party, whose confession is sought to be introduced, is in another state and unavailable as a witness, or that there is testimony tending to establish the guilt of the one making such confession, change the foregoing rule. Bryant v. State, 197 Ga. 641, 30 S.E.2d 259 (1944) (decided under former Code 1933, § 38-405).

Declarations to third persons against the declarant's penal interest to the effect that the declarant, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused at the accused's trial, or to procure a new trial on the basis of newly discovered evidence. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980) (decided under former Code 1933, § 38-405).

Witness's testimony as to a conversation the witness had with a child's mother was properly excluded as the mother testified and defendant did not ask the mother about the conversation. Georgia does not recognize a third party's admission against penal interest when that admission exculpates the defendant. Hood v. State, 273 Ga. App. 430, 615 S.E.2d 244 (2005) (decided under former O.C.G.A. § 24-3-35).

Trial court did not abuse the court's discretion in excluding the testimony of the defendant's roommate that an inmate told the roommate that the inmate and another man committed the murder because the inmate denied that the inmate had anything to do with the murder and the inmate further denied ever making any statement to the roommate admitting to the murder; and the police conducted an independent investigation of both the inmate and the other man based on the roommate's allegations and found no relevant evidence in the men's apartments to connect them to the victim's murder, and they did not find any fingerprint evidence to connect the men to the white truck used as the getaway vehicle. Roscoe v. State, 302 Ga. 19, 805 S.E.2d 11 (2017).

Guilty pleas.

- As to parties to a civil action, a guilty plea constitutes an admission against interest which is prima facie evidence of the facts admitted. Tomlinson, Inc. v. Roberts, 142 Ga. App. 134, 235 S.E.2d 721 (1977) (decided under former Code 1933, § 38-405).

Party disclaiming title.

- If the defendant in trover relies, amongst other things, upon paramount outstanding title in another, the acts and declarations of the third person, disclaiming title in oneself and acquiescing in the plaintiff's title, are admissible in evidence. White v. Dinkins, 19 Ga. 285 (1856) (decided under former law).

Declaration of holder of negotiable instrument.

- Party who acquires title to a bill or note, by endorsement, delivery, or otherwise, before due, but with express notice of any defect or incumbrance, insofar identified with the previous owner, that the previous owner's declarations or admissions while owner, may be received in evidence against such party. Glanton v. Griggs, 5 Ga. 424 (1848) (decided under former law).

Affidavit of guarantor's attorney.

- In an action by lessors against guarantors, the affidavit of an attorney representing the guarantors, recalling a conversation she had with an officer of the lessee, was not admissible because the statements therein were not against the interest of the officer, were self-serving, and were not collateral to the main issue. Athens Int'l, Inc. v. Venture Capital Properties, Inc., 230 Ga. App. 286, 495 S.E.2d 900 (1998) (decided under former O.C.G.A. § 24-3-35).

Statements that conveyances had been made for purpose of support of widow.

- In a widow's suit seeking to impose a constructive trust on accounts and assets conveyed by the decedent to the decedent's executor, the trial court did not err in excluding hearsay testimony of the widow's daughter and a close friend of the decedent stating that the assets had been conveyed to the executor for the care and support of the widow. The testimony was vague and was not proven to be admissible under the trustworthiness exception of O.C.G.A. § 24-8-807. Rabun v. Rabun, 341 Ga. App. 878, 802 S.E.2d 296 (2017).

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, §§ 813, 838, 841, 842, 843, 904 et seq.

C.J.S.

- 31A C.J.S., Evidence, §§ 299, 312 et seq., 342, 350 et seq., 447, 482, 537 et seq.

ALR.

- Death of adverse party as affecting evidence with respect to book account, 6 A.L.R. 756.

Admissibility of dying declaration with respect to transaction prior to homicide, 14 A.L.R. 757.

Use in criminal case of testimony given on former trial, or preliminary examination, by witness not available at present trial, 15 A.L.R. 495; 79 A.L.R. 1392; 122 A.L.R. 425; 159 A.L.R. 1240.

Impeaching or discrediting dying declarations, 16 A.L.R. 411.

Dying declarations involving an opinion or conclusion, 25 A.L.R. 1370; 86 A.L.R.2d 905.

Admissibility in favor of accused in criminal case of extrajudicial confession by stranger, 35 A.L.R. 441; 48 A.L.R. 348.

When transfer deemed to be one in contemplation of death within the meaning of the Inheritance Tax Law, 41 A.L.R. 989; 75 A.L.R. 544; 120 A.L.R. 170; 148 A.L.R. 1051.

Admissibility of dying declarations in cases not involving homicide, 49 A.L.R. 1282; 91 A.L.R. 560; 47 A.L.R.2d 526.

Admissibility of dying declarations inculpating defendant in murder of one other than victim named in indictment, 69 A.L.R. 1221.

Admissibility in behalf of defendant in action for libel or slander of similar charges made by other persons against plaintiff, 74 A.L.R. 732.

When one deemed to be beyond jurisdiction of court within meaning of statute relating to admissibility of testimony given on former trial, 87 A.L.R. 891.

Admissibility of dying declarations in cases other than prosecution for homicide, 91 A.L.R. 560.

Admissibility of dying declarations as affected by their incompleteness, 94 A.L.R. 679.

Quantum of proof of preliminary facts necessary to admissibility of dying declarations, 96 A.L.R. 621.

Constitutionality, construction, and application of statutes making statements of deceased persons admissible in evidence, 96 A.L.R. 686.

Admissibility of memoranda made by one since deceased regarding matters in respect of which he acted for one of the parties to the present litigation, 103 A.L.R. 1501.

Admissibility in connection with dying declarations of other declarations by deceased not made in circumstances entitling them to admission as independent dying declarations, 104 A.L.R. 1319.

Admissibility of admissions against title to tangible personal property made by one subsequent to executing chattel mortgage thereon, 106 A.L.R. 1296.

Admissibility of oral testimony as to dying declarations which had been reduced to writing, 112 A.L.R. 43.

Permitting dying declarations to be taken into jury room, 114 A.L.R. 1519.

Adverse possession as affected by attempt during period thereof to change, or make more specific, the tract claimed, 115 A.L.R. 1299.

Effect of war on litigation pending at the time of its outbreak, 137 A.L.R. 1335; 147 A.L.R. 1298; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 150 A.L.R. 1417; 150 A.L.R. 1418; 151 A.L.R. 1453; 152 A.L.R. 1450; 154 A.L.R. 1447.

Admissibility of oral or written statement by deceased as to fact or terms of an antenuptial or postnuptial agreement which cannot be found, 140 A.L.R. 1133.

Identity of parties as condition of admissibility in civil case of testimony or deposition in former action or proceeding of witness not available in present action or proceeding, 142 A.L.R. 673.

Admissibility on question of constructive trust of declarations made by grantor after execution and delivery of deed absolute on its face, 156 A.L.R. 1335.

Weight and value of dying declarations as evidence, 167 A.L.R. 147.

Binding effect of party's own unfavorable testimony, 169 A.L.R. 798.

Use of interpreter in court proceedings, 172 A.L.R. 923.

Mode of proof of testimony given at former examination, hearing, or trial, 11 A.L.R.2d 30.

Right of prosecution, in homicide case, to introduce evidence in rebuttal to show good, quiet, and peaceable character of deceased, 34 A.L.R.2d 451.

Admissibility of declarations of grantor on issue of delivery of deed, 34 A.L.R.2d 588.

Adverse possession of landlord as affected by tenant's recognition of title of third person, 38 A.L.R.2d 826.

Reputation as to ownership or claim as admissible on question of adverse possession, 40 A.L.R.2d 770.

Admissibility of dying declaration in civil case, 47 A.L.R.2d 526.

Opinion of doctor or other attendant as to declarant's consciousness of imminent death so as to qualify his statement as dying declaration, 48 A.L.R.2d 733.

Declarations or admissions of person in control of vehicle as admissible against or binding upon owner, lien claimants, or the like, of a vehicle subjected to forfeiture proceedings, 55 A.L.R.2d 1280.

Admissibility, in action on employee fidelity bond or policy, of confessions or declarations of such employee no longer available as witness, 65 A.L.R.2d 631.

Identity of subject matter or of issues as condition of admissibility in civil case of testimony or deposition in former proceeding of witness not now available, 70 A.L.R.2d 494.

Use in civil case of testimony given in criminal case by witness no longer accessible, 70 A.L.R.2d 1179.

Admissibility in evidence of receipt of third person, 80 A.L.R.2d 915.

Admissibility in criminal trial of dying declarations involving an asserted opinion or conclusion, 86 A.L.R.2d 905.

Admissibility of homicide victim's statements exculpating the accused, 95 A.L.R.2d 637.

Admissibility of evidence of uncommunicated threats on issue of self-defense in prosecution for homicide, 98 A.L.R.2d 6.

Admissibility, as part of res gestae, of accusatory utterances made by homicide victim after act, 4 A.L.R.3d 149.

Admissibility of statements of coconspirators made after termination of conspiracy and outside accused's presence, 4 A.L.R.3d 671.

Statements of declarant as sufficiently showing consciousness of impending death to justify admission of dying declaration, 53 A.L.R.3d 785.

Sufficiency of showing of consciousness of impending death, by circumstances other than statements of declarant, to justify admission of dying declaration, 53 A.L.R.3d 1196.

Admissibility, as against interest, in civil case of declaration of commission of criminal act, 90 A.L.R.3d 1173.

Sufficiency of efforts to procure missing witness's attendance to justify admission of his former testimony - state cases, 3 A.L.R.4th 87.

Disqualification, for bias, of one offered as interpreter of testimony, 6 A.L.R.4th 158.

Fence as factor in fixing location of boundary line - modern cases, 7 A.L.R.4th 53.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter, 12 A.L.R.4th 1016.

Former testimony used at subsequent trial as subject to ordinary objections and exceptions, 40 A.L.R.4th 514.

When do corroborating circumstances clearly indicate trustworthiness of hearsay statement tending to expose declarant to criminal liability and offered to exculpate accused, so as to permit admission of statement under Rule 804(b)(3) of Federal Rules of Evidence (28 USCS Appx), 125 A.L.R. Fed. 477.

Admissibility under Rules 804(b)(1) and 807 of Federal Rules of Evidence (Fed. Rules Evid. Rules 804(b)(1) and 807, 28 USCA) of grand jury testimony of unavailable witness, 149 A.L.R. Fed. 231.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through interpreter - state cases, 97 A.L.R.6th 567.

Hearsay objections to admission of text messages or testimony thereof, 10 A.L.R.7th 4.

Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter - federal cases, 91 A.L.R. Fed. 2d 187.