160 A. 249 | Vt. | 1932
On June 20, 1930, the respondent and one Allen Thompson engaged in a fist fight at the entrance to the barn on the home premises of the respondent in Jericho. The blows struck by respondent caused severe injuries to Thompson's face, including the fracture of the left jaw and the fracture of several other facial bones. The next day Thompson was taken to the Fanny Allen Hospital in Winooski for treatment, and he remained there until he died on July 16, 1930. Early in the morning of July 15, Thompson was found lying upon the floor of his room in the hospital, and later the same day discovery was first made that three of his ribs on the left side were fractured. One of the fractured ribs punctured the pleural cavity which contained streptococcic pus and caused the bacteria to enter the blood stream. The terminal cause of death was the pus in the pleural cavity admitted to the blood by the broken rib puncturing the cavity. The respondent was convicted of involuntary manslaughter. By motion for a directed verdict, and also by motion to set the verdict aside, he challenges the sufficiency of the evidence to support the verdict on the following grounds: (1) That, since the evidence adduced by the State showed that respondent was first assaulted, there was not in the case sufficient evidence to warrant the jury in finding beyond a reasonable doubt that the acts of the respondent were not done in self-defense; and (2) that the evidence does not justify the finding and conclusion of the jury that the death of Thompson resulted from any act of the respondent, and especially from any unjustified blow by the respondent; but that the evidence showed that his death was produced by an intervening efficient cause due to accident and mischance. Upon the overruling of these motions, the questions were saved for review by proper exceptions.
In the consideration of these motions, the respective functions of the jury and the court must be kept in mind and adhered to. In this respect the rule is the same in criminal as in civil cases. The evidence must be taken in the most favorable light for the State; and, if there is some evidence tending to support or justify the verdict, it is for the jury to construe it, and to determine its weight. State v. Pierce,
We will consider the grounds of the respondent's motion for a directed verdict in the order stated: First, whether the respondent's acts were in self-defense. The respondent was road commissioner of the town of Jericho, and Thompson was employed by him to work on the town roads. Late in the forenoon of June 20, work for the town was stopped on account of weather conditions, and the respondent hired Thompson to work for him on his barn. After the noon meal, Thompson, who had been drinking and was somewhat under the influence of intoxicating liquor, did not return to his work. The respondent saw him in the house and asked him if he was not going to work that afternoon, and Thompson replied that he would when "he *450 got damn good and ready." Respondent discharged Thompson and hired another man to take his place. While respondent was on his way to his barn, Thompson came from the house toward him, saying he was going to the barn to work. Respondent told him to go away and not bother the help. As respondent reached the entrance to the barn, Thompson, who was following him, said: "You son of a _____ I will show you that you cannot tell me when to go home." The only direct evidence of what occurred immediately following this remark came from the respondent. He testified that at this threat, he turned just as Thompson was striking towards his head; that he dodged and the blow hit his shoulder; that respondent then struck Thompson in the face, and Thompson struck back three or four times, hitting respondent's hand raised as a guard; that he struck Thompson only three blows, all of them in the face; that the last blow hit Thompson on the mouth, which knocked him down, and he went right up against the corner of the barn door.
Thompson was a drinking man, and was particularly quarrelsome when under the influence of intoxicating liquor. The respondent had previously discharged him for drinking while at his work. For these acts Thompson had made threats of violence against the respondent, and the respondent had heard of these threats. But respondent did not know that Thompson had been drinking the day of the assault.
In the circumstances it is clear, and the State admits, that the respondent had the right to use sufficient force to repel the attack made upon him by Thompson. The rule as to the right to use force to repel an assault and battery is that the assailed may beat his assailant so far as to make him desist; but he cannot inflict great bodily harm or take the life of the assailant, unless he reasonably apprehends death or great bodily harm to himself, and then he may not do so if he has other means of avoiding the assault that appear to him at the time as sufficient and available, and which are in fact sufficient and available.State v. Patterson,
It is true, as the respondent argues, that, since the evidence adduced by the State showed that respondent was first assaulted, the burden was upon the State to prove beyond a reasonable doubt that the acts of the respondent were not done in self-defense.State v. Patterson, supra. Therefore, the precise question now before us is whether there is in the case any evidence tending to show that the force used by the respondent was excessive, so as to make it a jury question.
While the respondent says that he struck only three blows, and that Thompson was pressing the attack to the third blow, yet the State is not bound by his version of the encounter, if there is evidence of facts and circumstances from which opposing inferences may fairly and reasonably be drawn. The State argues that the evidence of the number and character of the injuries received by Thompson from blows struck by respondent is sufficient to warrant a finding by the jury that excessive force was used. These injuries, according to the tendency of the evidence, were a badly swollen face, especially the right eye, two lower teeth broken and removed, a bunch on the forehead, nasal *452 cavity and mouth partly filled with blood, abrasion on left shoulder and a black and blue mark on left upper arm, and a fracture of the jaw, high up on the jaw near the articulation on the left side. On post-mortem examination several other fractures of the facial bones were found which the evidence showed were attributable to blows by the respondent. The respondent received no injuries in the contest.
The respondent has addressed to us a serious argument that, since the blows were struck with the fists only, excessive force cannot be determined from the effect of such blows, for, he says, a person in actual conflict with a powerful and belligerent attacker (as Thompson unquestionably was) ought not to be bound to measure with nicety the force of his blows. Quite true, but the reasoning applies to the application of the rule and not to the rule itself. The legal measure of justifiable force, as we have stated, is such force as reasonably appears under all the circumstances to the person attacked to be necessary for his protection. This rule is equally applicable to all force regardless of the means employed. The character of the force employed is a circumstance for the jury's consideration, but it does not control the measure of force lawfully used in self-defense. The injuries to Thompson were numerous and serious, and raise a strong inference of great violence. A physician, who treated Thompson the day of the fight, testified that all the injuries which he discovered, including the fracture of the jaw, could have resulted from three blows of the fist; but the respondent stated immediately after the fight that "he guessed he struck him a little too hard," and the same afternoon he further stated that "he hadn't ought to have struck him only once." We think that the evidence was sufficient to make it a jury question, under proper instructions, whether the respondent used excessive force. There was no error in overruling respondent's motion on this ground.
The second question raised by the motion is whether the evidence justifies a finding and conclusion that the death of Thompson resulted from any unlawful act of the respondent. The conviction cannot stand unless there is competent evidence tending to show that some unlawful act of the respondent was the cause of death. State v. Wood and Smith,
The respondent's unlawful acts need not be the sole cause of death; it is sufficient if they were a contributory cause. State
v. Block,
For application of the rule we turn to the evidence. We have examined the transcript with the care required by the importance of the question. The record does not justify a conclusion that the respondent caused the fracture of Thompson's *454
ribs. There is no evidence of any blow in the vicinity of the ribs; no marks of any injury near the ribs were discovered; the attending physician testified that if the ribs had been broken prior to July 15, they would have been discovered by him in his examinations, and the autopsy disclosed a condition usually found in a break of two or three days. The only evidence which the state claims in any way connects the respondent with the broken ribs is from the testimony of a student nurse employed at the hospital, and who was in charge of Thompson the night of July 15 when he was found on the floor. She testified that from the time Thompson came to the hospital, he made gestures of pain in the chest, and "if we rubbed him, he would favor that chest — he didn't want it touched." The witness never told the attending physician or the nurse in charge about these symptoms, and no record of them appears on the hospital chart. During periods of delirium, Thompson was kept in bed by the use of a restraining sheet, which was tied over his chest, and fastened to either side of the bed. Some of the rods of the bed were bent by his straining against this sheet. This may well account for any indication of chest tenderness here disclosed; at least, it removes from that condition all support for an inference that Thompson's ribs were broken before July 15, especially when considered in connection with the convincing direct evidence to the contrary. It is not the "more probable hypothesis, with reference to the possibility of other hypotheses." Wellman, Admr.
v. Wales,
The sinuses and the pleural cavity contained streptococcic pus. The evidence wholly fails to account for its presence in the pleural cavity. The germ is in the air, and infection may be from breathing by otherwise healthy persons. The State pathologist, who performed the autopsy on the body of Thompson, testified that there are several things that cause pus in the pleural cavity, and (quoting from his testimony) "can't say in this case"; "it is only speculation." It was probably present in the pleura before Thompson was found out of bed, but further than that, how or when it probably developed, the evidence does not disclose. These bacteria went from the pleural cavity and caused death. "Back of that," says the State pathologist, "I cannot go"; nor does the testimony of any other medical witness. The sinus infection is likewise unaccounted for. It may *455 exist for a long period without the patient knowing it. The State pathologist testified that he never heard of this condition being caused by a "blow on the head," and further (quoting): "I do not attempt to account for it," and no other medical witness attempted to account for its origin. It appeared that there was a considerable discharge from Thompson's mouth of a thick, creamy appearing pus or pus-colored mucus. The attending physician was asked whether this discharge falling back in the throat could create the sinus condition and he answered, "might possibly, I hardly think it would." No other witness expressed an opinion of any connection between the mouth discharge and the sinus or pleural infection.
Thompson had long been addicted to alcoholic liquors, especially during the last months of his life; he had been drinking, and was acting in a strange and unusual manner just before his altercation with respondent, but he had worked during the forenoon of that day and was apparently in health. The autopsy disclosed that Thompson's skull was not fractured, that is, there was no fracture of the bone surrounding the brain; he was suffering from œdema or wet brain, which is more apt to be due to chronic alcoholism than to any other cause, and not likely to result from injury. Oedema produces delirium or unconsciousness, more often a comatose condition than delirium. The only medical evidence to support an inference that Thompson's brain condition was attributable to respondent is the testimony of the physician who was called to treat Thompson the day of the fight. His testimony to this point on cross-examination was as follows: Q. "You detected signs of intoxication?" A. "I did." Q. "But you didn't deem it necessary to give any treatment for concussion or anything of that sort under the circumstances?" A. "No." Q. "You were satisfied that the unconsciousness and delirium were due to intoxication?" A. "Not wholly." Q. "Did you see anything that required treatment for anything that would produce unconsciousness?" A. "There was something that made him unconscious, the alcohol, of course, I thought had something to do with it."
We would have little difficulty in sustaining a finding that some blow struck by respondent was a contributing factor in producing Thompson's brain condition, but since respondent was justified in using some force in self-defense it *456
cannot be said that the evidence justifies the inference that Thompson's unconsciousness and delirium were caused by anyunlawful blow struck by respondent. If any unlawful force used by respondent contributed to cause the delirium, a proximate causal connection between such force and the death might be established (see McKane v. Capital Hill Quarry Co.,
The State relies upon State v. Block,
In a homicide case, where the life or liberty of a citizen is at stake, and where the guilt of the accused must be established beyond a reasonable doubt, the causal connection between the death of the decedent and the unlawful acts of the respondent cannot be supported on mere conjecture and speculation. InWellman v. Wales,
Other exceptions by respondent either raise the same questions already disposed of, or, in view of our disposition of the case, they become unimportant.
Judgment reversed, conviction and sentence set aside, and causeremanded.