McDaniel v. State, 76 Ala. 1

McDaniel v. State

76 Ala. 1 | Ala. | 1884

STONE, C. J.

— One of the mooted questions in the court below was, whether the blow inflicted by the defendant caused-the death. On this question, the testimony — notably that of the experts — was in conflict. There seems to have been no dispute of the facts, that the accused struck the deceased in the forehead with an iron weight, causing a serious wound, and that when the exhumed skull was exhibited on the trial, it was found seriously fractured, at or about the part where the blow took effect. The contested inquiry was, the causal connection between the blow and the death, which occurred some weeks afterwards. We feel we are within the domain of common knowledge, when we affirm that a fracture of the skull, pressing it upon the brain, is a dangerous wound, which may cause death, but which does not necessarily, and in all cases, produce that result. Prompt and skillful surgical treatment may, in some cases, relieve and save the patient. Nor can it be affirmed that, in every such case, death will ensue, even without treatment. Still it is a dangerous wound, that may produce death.

When death does not ensue closely upon the infliction of the blow, which it is alleged causes it, many contentions have arisen, and continue to arise, as to the rule of causal connection to be observed in such cases. In some of the phases of this question, certain rules have been declared, which seem to rest on impregnable grounds. In 2 Bish. Cr. Law, 7th ed., § 638, *7it is said: “ The doctrine is established, that if the blow caused the death, it is sufficient, though the individual might have recovered had he used proper care of himself, or submitted to a surgical operation, to which he refused submission, or had the surgeon treated the wound properly.” This we understand to be the rule where the wound is in its nature mortal, or likely to produce death. So, we think, it results as a corollary, if the death result in part from a blow wrongfully given, which may produce death, and partly from lieglect, or unskillful treatment, then the assailant is guilty of the homicide, in the degree the attendant circumstances assign to the act. — -McAllister v. The State, 17 Ala. 434; Parsons v. The State, 21 Ala. 300. But, where the wound is not of itself mortal, and the party dies in consequence solely of the improper treatment, not at all of the wound, the result is otherwise. — Parsons v. State, supra; 2 Bish. Cr. Law, $ 639. In 1 Whar. Cr. Law, 8th ed., §§ 157, 158, the ruléis stated thus: “The true test is, whether the deceased’s death followed as an ordinary and natural result from the conduct of the defendant. If so, it is no defense that the deceased, under another form of treatment, might have recovered. . . But, if the result is caused by the malpractice of the physician, the wound not being in itself mortal, and the physician not acting in concert with the defendant, then the defendant is not responsible; for the wound, though a condition of the killing, is not its juridical cause.”

The second and third charges given at the instance of the State are faulty. They make it a condition of acquittal, under the plea of self-defense, that “the evidence must show that the difficulty was not provoked or encouraged by the defendant.” This was a misplacing of the burden of proof. Enough for defendant, if he showed that he was, really, or to ordinary appearance, in imminent peril of life or limb, from which lie had no other reasonable means of escape. To this defense it would have been a full answer, if the testimony had shown the defendant provoked or encouraged the difficulty.The law, however, does not presume such provocation or encouragement, and does not require disproof of it, unless there be testimony tending to prove its existence. Even then, it can not be affirmed, as matter of law, that it must be disproved. The rule is, that its existence, when shown, is an answer to the plea of self-defense, but its existence is not presumed, so as to impose on the defendant the burden of its disproof. — DeArman v. The State, 71 Ala. 351; Storey v. The State, Ib. 329.

Of the charges requested by defendant, the first was properly refused, because it ignored all inquiry whether defendant contributed to the bringing on of the difficulty. The second was properly refused, because it demanded an acquittal, if there *8was unskillful treatment, the immediate cause of death, notwithstanding the wound may have been in its nature mortal, and notwithstanding it may have contributed to the death. Bowles v. The State, 58 Ala. 335. The third charge was abstract and misleading, having no testimony to rest on. The fourth charge postulates murder in the first degree, but not murder in the second degree. It was immaterial, however, as the defendant was convicted of manslaughter only, and can never again be tried for murder under this charge. The fifth charge is misleading, in view of the testimony in this cause; and "the sixth charge does not assert a correct principle of law.

The record shows that the witness Parker was allowed, against the objection of defendant, to prove that Dr. Dreunen’s testimony before the committing magistrate, was substantially the same as that given on the final trial. If the record showed that, in a proper way, attempt had been made to impeach Dr. Drennen, by showing his testimony was materially variant from that given on the former trial, then Parker’s testimony would have been admissible. It is not shown in this record that any such attempt had been made. It is not permissible to make proof sustaining the credibility of one’s own witness, until attempt has been made to impeach it, in some of the forms known to the law.

There is nothing in the objection to the indictment, nor to the copy served on defendant.

Reversed and remanded. Let the defendant remain in custody, until discharged by due course of law.