Smith v. State

1. When the State undertakes to lay the foundation for proving dying declarations, it is the duty of the presiding judge to pass upon the testimony offered for this purpose, and to determine therefrom whether or not evidence of the alleged declarations is admissible. Campbell v. State, 11 Ga. 376; Dumas v. State, 62 Ga. 58; Mitchell v. State, 71 Ga. 128; Von Pollnitz v. State, 92 Ga. 16.

2. It is not, after so doing and after allowing such evidence to be introduced, erroneous to instruct the jury that “it is the duty of the court to determine from the preliminary examination whether or not the…