Fowler v. State

• Decision Date: 20 May 1909
• Citation: 161 Ala. 1,49 So. 788
• Parties: FOWLER v. STATE.
• Court: Alabama Supreme Court

49 So. 788

161 Ala. 1

FOWLER v. STATE.

Supreme Court of Alabama

May 20, 1909

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Frank Fowler was convicted of murder in the second degree, and appeals. Reversed and remanded.

Anderson Denson, and McClellan, JJ., dissenting.

The following charges were refused to the defendant: "(1) The court charges the jury that the defendant cannot be convicted of murder in the second degree or manslaughter in the first degree unless the defendant had the intention to kill Missouri Fowler, or intended to do an act of violence from which ordinarily, in the usual course of events, death or great bodily harm may be the consequence. (2) The court charges the jury that the defendant cannot be convicted of murder in the second degree or of manslaughter in the first degree unless the defendant had the intention to kill Missouri Fowler, or intended to do an act of violence from which ordinarily, in the usual course of events, death or great bodily harm might be the consequence. (3) The court charges the jury that the defendant cannot be convicted of murder in the second degree unless he inflicted an act of violence upon Missouri Fowler which produced her death, and at the time he inflicted such act he had the intention to kill her, or intended to do an act of violence from which ordinarily, in the usual course of events, death or great bodily harm may be the consequence." Charge 4 is a duplicate of charge 3. "(5) The court charges the jury that the defendant cannot be convicted of murder in the second degree unless he had the intention to kill Missouri Fowler, or intended to do an act of violence from which ordinarily, in the usual course of events, death or great bodily harm might be a consequence. (6) Although the jury may believe from all the evidence in this case that the death of Missouri Fowler was caused by some act of the defendant, yet the jury cannot find him guilty of murder in the second degree, unless they should further believe from the evidence beyond all reasonable doubt, that such act was inflicted with the intention to kill Missouri Fowler, or unless the defendant intended to do an act of violence from which ordinarily, in the usual course of events, death or great bodily harm might have been the consequence."

The defendant offered Mrs. Sam Holland as a witness, who offered to state that very recently, not more than three or four weeks prior to the trial, a lady died in the same community in which Mrs. Fowler lived; that witness was there when she died; that she was taken suddenly, and died instantly; that witness helped wash and dress the lady an hour or so after she died. Defendant's counsel then asked the witness if at the time she washed and dressed the body of the dead lady there were any spots or discolorations on the body, and, if so, on what portion of the body were the spots or discolorations, and to describe them. The state objected, whereupon defendant's counsel stated to the court that they expected to show by this witness that within an hour or two after she died there were red spots or discolorations upon her body, about her back, shoulders, and cheeks, and that these spots and discolorations appeared on her body after she died, and that no violence had been inflicted upon her.

Espy & Farmer, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DOWDELL, C.J.

This is the second appeal in this case. See Fowler v. State, 45 So. 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 which 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 former appeal (45 So. 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 of 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 So. 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 kill 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 So. 259, 38 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 So. 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 So. 425; and White's Case, 84 Ala. 421, 4 So. 598.

We adhere to the law as above laid down in the cited cases; 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.

DENSON J. (dissenting).

The facts disclosed by the present record do not make a case materially different from the case as presented by the record on the former appeal. The general statement of facts in the opinion of the Chief Justice is correct, with the exception that to it should be added that there is testimony tending to show that finger marks were found on the neck of the deceased and that her neck appeared to be swollen. No one was present when death came to the deceased, except the defendant, her husband; he and she occupying the same bed. According to the husband's testimony he was asleep when his wife died, and was wholly unconscious of her death until, upon awakening, he placed his hand upon her and found her cold and lifeless. It is necessary to repeat but little of the testimony and note its tendencies, in order to bring clearly in view the writer's position. The testimony (Mrs. Lewis') tended to show that, in the preparation...