Fowler v. State

49 So. 788, 161 Ala. 1, 1909 Ala. LEXIS 141

• Court: Supreme Court of Alabama
• Decided: May 20, 1909
• Status: Published

Opinions

DOWDELL, C. J.

This is the second appeal in this -case. See Fowler v. State, 155 Ala. 21, 45 South. 913. The evidence on the last trial, as on the former, was wholly circumstantial as to the cause of the death of the person charged in the indictment to have, been murdered. The evidence of the expert witnesses as. to whether death was the result of natural causes, or of violence inflicted by some one, was in conflict. That the immediate and direct cause of death was a blood clot upon the brain of the deceased was without conflict or dispute; but whether the clot upon the brain was the result of pathological causes, or of violence inflicted, was, from the evidence adduced on the trial, a disputed question. The evidence on the part of the state tended to show bruises on the person of the deceased, while that on the' part of the defendant tended to show that what were supposed to be bruises and effects of violence were merely discolorations, the effects of decay; that is, results of pathological causes.

As to how the bruises, if such they were, were produced — whether by blows given with the fist or with some instrument — there was no positive evidence. These were matters rested in inference, and to be ascertained and determined from the nature and character of the described bruises, and were, of course, questions of fact exclusively within the province of the jury. From the tendencies of the evidence it was as open to the jury to find, if death resulted from blows inflicted, that such blows were given with the fist, as it was to find that they were given with a stick or some other instrument; and on this state of the evidence we are of the opinion that the defendant was entitled to have the court charge the jury as to manslaughter in the first degree, in the absence of evidence of a positive intention, and to this extent the opinion on the former appeal is modified.

When this case was here on a former appeal (155 Ala. 21, 45 South. 913), it was said by the court, speaking through Denson, J.: “There is no testimony tending to show the circumstances attending the killing, or to show that it was done in heat or passion; nor is there any evidence that the deceased came to her death as a result of a blow from the fist. The defense made was that the deceased came to her death from natural causes —that the defendant had no agency whatever in producing her death. Consequently charges 4, 7, and 8 were properly refused as being abstract” — citing Dennis’ Case, 112 Ala. 64, 20 South. 925. While it is true that the defense set up was that the deceased came to her death from natural causes, and that there was no direct or positive evidence that her death was the result of a blow from the' fist, yet the plea of not guilty put in issue every essential element of the crime charged in the indictment; and eliminating from all consideration the nature of the defense set up, and considering only the evidence of the state, and assuming therefrom that death was the result of violence inflicted by the defendant, it was a matter resting in inference, from the circumstances testified to, whether the inflicted violence was done with the fist or with an instrument calculated to produce death. On this view the charges are not subject to the criticism of being abstract.

As a general proposition of law, an actual intent to Trill is not an essential ingredient in either the crime of murder or of manslaughter in the first degree. The principle in question is well stated in Lewis v. State, 96 Ala. 6, 11 South. 259, 88 Am. St. Rep. 75, where, in speaking of manslaughter in the first degree, it is said: “An actual intention to take life is not an essential element in this offense, or, indeed, in murder. The voluntary setting in motion or application of unlawful force, or the doing of an act greatly dangerous to the lives of others, whereby death ensues, will suffice to supply the legal elements of evil intent, however free the action may be from actual purpose to kill.” Again, in Reynolds v. State, 45 South. 894, this court, speaking through Haralson, J., states the law as follows: “To constitute manslaughter in the first degree, there must be either a positive intention to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily harm may result. It is not necessary that the perpetrator intended or willed the death of the party” — citing Lewis v. State, supra; Harrington’s Case, 83 Ala. 13, 3 South. 425; and White’s Lase, 84 Ala. 421, 4 South. 598.

We adhere to the law as above laid down in the cited eases; and, in so far as there is anything in what is said in the opinion in this case on the former appeal opposed thereto, to that extent it is overruled. On the law as above stated, and under the evidence in this case, we are of the opinion that the written charges numbered from 1 to 6, which were refused to the defendant, should have been given. They are unlike charges 3, 5, and 6 condemned on the former appeal, which only hypothesized the absence of an actual intention to kill.

The only other question relates to the exclusion of the testimony of Mrs. Sam Holland, on the objection of the state, as shown on page 20 of the transcript. This evidence was irrelevant, and there was no error in sustaining the objection thereto.

For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Simpson, Mayfield and Sayre, JJ., concur. Anderson, J., dissents.