Frazier v. State

• Decision Date: 07 October 1958
• Docket Number: 4 Div. 380
• Citation: 112 So.2d 212,40 Ala.App. 67
• Parties: Arthur FRAZIER v. STATE.
• Court: Alabama Court of Appeals

Page 212

112 So.2d 212

40 Ala.App. 67

Arthur FRAZIER v. STATE.

4 Div. 380.

Court of Appeals of Alabama.

Oct. 7, 1958.

Rehearing Denied Oct. 28, 1958.

J. Hubert Farmer, Dothan, for appellant.

John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

CATES, Judge.

Frazier appeals his conviction of voluntary manslaughter for the killing of his eighteen months' old son, Uless Frazier, by beating him with a fly swatter.

The beating, lasting off and on some thirty minutes was administered about 9:30 o'clock on the night of November 14, 1957. Frazier's wife's best judgment was he hit the baby about eight or ten licks. The child died November 17.

An assistant state toxicologist testified the contusions lowered the child's resistance and it died from traumatic pneumonia. A practicing physician testified that traumatic pneumonia could come about only as a result of a lung puncture, as when a rib is fractured.

In McAllister v. State, 17 Ala. 434, the deceased, apparently on the road to recovery, suffered a relapse. The court there approved Hale's language that, though a wound be not the immediate cause of death, nevertheless if it mediately results in death within a year and a day it is murder or manslaughter as causa causati. ¹ Commonwealth v. Hackett, 2 Allen, Mass., 136, People v. Meyers, 392 Ill. 355, 64 N.E.2d 531 (fall after abortion not supervening act). This principle is analogous to the rule that prevents contributory negligence from acting to absolve a defendant from criminal responsibility, Hanby v. State, Ala.App., 101 So.2d 553.

In a civil case as to the distribution of a joint bank account, the Supreme Court of Minnesota held that, as against demurrer, an allegation that the widow who consciously persuaded her husband (who was unaware of a serious heart ailment) to overexert himself presented a question of felonious homicide, Vesey v. Vesey, 237 Minn. 295, 54 N.W.2d 385, 32 A.L.R.2d 1090.

The qualifications of a proffered expert are largely entrusted to the discretion of the trial judge. In McMurtrey v. State, Ala.App., 101 So.2d 88, Mr. Sowell, an Assistant State Toxicologist (who was also the witness here) was held qualified to testify etiologically as to death from a heart attack.

Mr. Sowell testified in this case that he had taken two college courses in pathology. This was one more than at the time of his testimony against McMurtrey. He went on to say he had gone to school at Alabama Polytechnic Institute from 1944 to 1956, holding degrees of B. S. (in chemistry with a minor in pathology) and M. S. The Encyclopedia Brittanica (1952, Vol. 17, p. 376c) says pathology has come to embrace practically all medical studies save diagnosis and treatment.

Some criticism has been voiced as to the liberality which the courts, both trial and appellate, have accorded the reception of opinion evidence given by the State Toxicologist and his assistants. ² Yet, essentially, in virtually every case, the step by step research and testing procedure used by these witnesses has been related to the jury along with the assumed data, corollaries, and other matters asserted to be scientifically axiomatic.

Thus, while perhaps a toxicologist, for example, may not have had the extensive study or intensive training scholastically or experientially in the field of pathology which we might encounter in a specializing pathologist or a doctor of medicine, nevertheless, where the opinion called for is not of the curbstone variety but rather is predicated upon observation or laboratory demonstrations (under proper scientific controls such as those required by Tesney v. State, 77 Ala. 33), necroptic dissection, or upon reading and research, we cannot say the testimony should not go before the jury merely because the witness had not had this or that course in school. Criminal investigation can probably be called a science--and certainly it is at least a parascience--partaking as it does of the employment of scientific methods and knowledge in many fields to show by deduction or empiricism matters of cause and effect which are not within the scope of everyday observation.

An expert witness is, by definition, any person whose opportunity or means of knowledge in a specialized art or science is to some degree better than that found in the average juror or witness. McElroy, Law of Evidence in Alabama, § 127, pp. 49-50, Letson v. State, 215 Ala. 229, 110 So. 21, Hicks v. State, 247 Ala. 439, 25 So.2d 139 (nurse gave opinion as to fatality of an axe wound), cf. Daniel v. State, 31 Ala.App. 376, 17 So.2d 542.

Moreover, in addition to the enquiry of the trial judge's passing on the qualifications of the proffered expert, the defendant has at least three safeguards against being railroaded by the testimony of a mountebank or charlatan: (1) he has the right of cross-examination--'thorough and sifting'--Code 1940, T. 7, § 443, and this may extend to imaginary hypotheses to test the witness' 'specific gravity' (George v. State, 240 Ala. 632, 200 So. 602), or by confronting him with standard works (Smarr v. State, 260 Ala. 30, 68 So.2d 6); (2) he may (as Frazier did here) counter with his own expert; and (3) he may request the court to instruct the jury as to the weight, if any, which may be given to the opinion testimony of an expert witness, Fitzhugh v. State, 35 Ala.App. 18, 43 So.2d 831, Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, Duke v. State, 257 Ala. 339, 58 So.2d 764.

In this instance, we are rationally bolstered in our belief that the trial judge did not abuse his discretion in allowing both the State and the defense to engage in an expert disputation as to whether contusions caused by a fly swatter could activate a process leading to death by pneumonia--since we have referred to 10 Cyclopedia of Medicine, Surgery, Specialties (F. A. Davis Co., Phila., Rev.1958), p. 860, where, in an article, The Pneumonias, by Harold L. Israel, M.D., M.P.H., we find:

'Traumatic Pneumonia: Phillips [J.A.M.A. 133:161 (Jan. 18) 1947] observed seventy three patients who developed pneumonia following nonpenetrating injuries to the chest. Forty five had rib fractures. In fifty four cases the pneumonia was on the injured side only; in nineteen there was 'contrecoup' injury and contralateral pneumonia. Copleman [J.M.Soc. New Jersey 51:128 (Apr.) 1954] has collected a group of pneumonias directly resulting from trauma, and has emphasized that clinical and roentgenological manifestations of a full blown pneumonia can develop within a few hours after contusion of the lung. Hemoptysis is a characteristic symptom in traumatic pneumonia; otherwise the clinical features are typical of bacterial pneumonia, and response to antibiotics is usually prompt. The relationship of preceding trauma to pneumonia is frequently not appreciated. In our experience, traumatic pneumonia is a not uncommon variety.' [Bracketed matter added from footnotes.]

We quote from People v. Meyers, supra [392 Ill. 355, 64 N.E.2d 533]:

'The law is that when the State has shown the existence, through the act of the accused, of a sufficient cause of death, the death is presumed to have resulted from such act, unless it appears death was caused by a supervening act disconnected from any act of the defendant. In the state of the record here disclosed, it is immaterial that the fall may have hastened the death, or, if caused by illness produced by the abortion, was the immediate cause of it. The cause of death would still be the illegal abortion.

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'So, in a case where a person was assaulted by the defendant and was exposed to inclemencies of the weather, the point was made the deceased might have died by congestion of the brain, or exposure to the weather. The court, in applying the law applicable to such a situation, said: 'According to the principles laid down by these ancient authorities, as applicable to this case, if Kelley, as charged, inflicted the wounds upon Herron, and they were fatal, of which he died; or if they were dangerous in themselves, though not necessarily fatal, and the wounds caused the congestion of the brain, of which Herron died; or if the congestion of the brain caused his exposure to the inclemencies of the weather, by which he died; it must be held that Kelley, by the infliction of the wounds, caused the death of Herron.' Kelley v. State, 53 Ind. 311.

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'In the present case the evidence shows beyond a reasonable doubt that an illegal act was committed by the defendant, which might, in the natural course of events, result in death. A supervening cause claimed by the defendant to have broken a natural sequence is a fall, but, under the evidence in the case, the fall might just as properly be attributed to illness caused by defendant's illegal act as to an independent supervening cause, supposed to arise disconnected from the defendant's action.

'It seems to us that where the evidence fails to show anything of an independent nature that would cause the deceased to collapse and fall, it may be regarded as a part of a natural sequence of an illegal operation. * * *

'From all the evidence, it was within the province of the trial court to find and determine whether the attempt at abortion was the immediate cause of death, or whether the immediate cause of death was a fall produced by the attempt at abortion. In either case the proof would sustain the charge. On the other hand, * * * if the fall arose from a cause wholly disconnected with the acts of the defendant and produced death, the defendant would not be responsible. However, the mere fact of a fall, if there was a fall, would not, of itself, establish a supervening independent cause.'

In his general charge the trial judge said:

'* * * Now, there has been some evidence offered here in this case, that the deceased child did not have any doctor attending it. Under the laws of our State, a defendant cannot escape the penalties for an intentional act...