Welch v. State
| Decision Date | 05 May 1970 |
| Docket Number | 1 Div. 27 |
| Citation | 235 So.2d 906,45 Ala.App. 657 |
| Parties | Andy WELCH, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Ralph Kennamer, Mobile, for appellant.
MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
This appeal from a second degree murder conviction carrying a twelve year penitentiary sentence was originally assigned to our Presiding Judge.
September 7, 1968, appellant fired a shotgun at his wife. The shot hit the lower thigh of her right leg. The surgeon to whom she was sent gave her no drug to offset blood coagulation, according to the State's witness, Dr. Jack Dozier.
November 13, 1968 she died. A blood clot had formed in her left leg. Cause of death was the clot's lodging in her lung.
We quote, in part, from the State's examination of Dr. Dozier on redirect:
'Q And you said the inactivity was a direct result of the gunshot wound, didn't you?
'A Yes, sir.
'Q And the blood clot was the direct result of the gunshot wound and her death?
'A Probably associated with it.
'Q The blood clot was the direct cause of her death?
'A Yes, sir.'
More facts may be found in the dissenting opinion of our Presiding Judge.
Causation in criminal law is not uniformly the same as in tort. For example, the contributory 'negligence' of a victim in case of felony is not a bar to conviction though it may afford argument for a jury to mitigate.
The trial judge should have granted appellant's motion to exclude the State's evidence. The State failed to prove that the blood clot which came from the Left leg was due to the wound in the Right leg. Post hoc non propter hoc.
The physician's expression 'probably associated with it' is too vague to support a murder verdict. No testimony was given as to how blood clots form and circulate. No autopsy was made.
In a death as distinguished from a 'killing,' the prosecution must prove an absence of natural causes. That is, the first step is to prove the victim died because he was killed.
In McAllister v. State, 17 Ala. 434, we find the court approving Halehs 'causa causati,' i.e. 'cause of caused (or effect)' expression of answerability for wounds immediately or mediately resulting in death. 1 Put simply, has the appellant shortened his wife's life by wounding her?
Except as a literary expression, 'but for' is too imprecise for a rule of causation where proof beyond a reasonable doubt is axiomatic. Mankind might still be in Eden, but for Adam's biting an apple.
Accordingly, we do not think that cases such as Gurley v. State, 36 Ala.App. 606, 61 So.2d 137; Frazier v. State, 40 Ala.App. 67, 112 So.2d 212; or Cook v. State, 43 Ala.App. 304, 189 So.2d 595 control under the instant record.
In addition to jurisprudential discussions in Hall, General Principles of Criminal Law (2d ed.), Ch. VIII, Causation, pp. 247--295; Hart & Honore, Causation in the Law, 72 L.Q.R. 58--59, 260--281, 398--417; Glanville Williams, Causation in Homicide, Crim.Law Rev. (1957), 429--440, 510--521, we have also adverted to the more usual sources: 40 C.J.S. Homicide § 11 Cause of Death, § 312d. Cause of Death and Criminal Agency; 40 Am.Jur.2d, Homicide, § 13, et seq.; and Anno. 31 A.L.R.2d 693, Anno. 100 A.L.R.2d 769.
Basically, we conceive that the instant record (beyond which we cannot go) shows a situation controlled by Duncan v. State, 30 Ala.App. 356, 6 So.2d 450. 2 Here, for aught that appears, we have an unconnected fortuitous blood clot as the sole cause of death.
In Duncan, supra, we find pertinently:
'If death was due solely and exclusively to natural cause, i.e. heart failure, with the blow in no way contributing to or accelerating it, then, under the indictment, there was no homicide, and at most (if the blow were wrongful) defendant would only be guilty of some degree of assault.'
We have also adverted to cases from other jurisdictions. A number bear factual resemblance to that presented by the evidence here: Stevens v. United States (D.C.App.), 249 A.2d 514; Kilgore v. State (Ga.App.), 95 Ga.App. 462, 98 S.E.2d 72; State v. Everett (N.C.), 194 N.C. 442, 140 S.E. 22; State v. Bynum (Ohio App.), 69 Ohio App. 317, 43 N.E.2d 636; Commonwealth v. Radford (Pa.), 428 Pa. 279, 236 A.2d 802; Rucker v. State (Tenn.), 174 Tenn. 569, 129 S.W.2d 208; Seagroves v. State (Tenn.), 198 Tenn. 633, 281 S.W.2d 644; Terry v. Commonwealth (Va.), 171 Va. 505, 198 S.E. 911; and State v. Lynn (Wash.), 73 Wash.2d 117, 436 P.2d 463.
We quote from
Stevens v. United States, 249 A.2d 514:
'* * * the causal connection must be proven beyond a reasonable doubt and not by mere conjecture and speculation.'
Kilgore v. State, 95 Ga.App. 462, 98 S.E.2d 72:
'J. L. Kilgore was indicted in the Superior Court of Carroll County for the murder of his wife, and was convicted of involuntary manslaughter. On the trial it appeared that the wife died on Wednesday, May 16, 1956. On the previous Friday the defendant had hit her on the top of her head with a stick about a foot long, knocking her almost but not entirely senseless. On Sunday he hit her in the face several times with his hand or fist. On Tuesday the defendant and his wife went fishing, and she fell into the water, and he hit her across the back with a fishpole. Later he was seen coming back to the house with her in a truck, at which time he struck her several times around the neck and shoulders. During this time she was a sick woman, subject to dizzy spells and hypertension, and frequently fell down. The defendant in his statement told how, on that same afternoon, his wife had attempted to go back to the house by herself, and had fallen and become mired in the lake mud for a period of time, and that he finally found her there. Tuesday evening she was taken to the hospital, where she died the next day. The autopsy revealed superficial injuries to the nose and cheek, and a bruised area on the top of the head extending down to the outside of the skull. The deceased was suffering from a brain tumor about two inches in diameter embedded in the right frontal lobe of the brain, as revealed by autopsy. No other injuries or abnormality were found.
'It will be observed that this testimony is barren of any inference that the blow, which the woman received some 6 days before her death (or any other of the acts of maltreatment) did or would even be likely to accelerate the death of a person suffering with her disability. Although, in Long v. State, 60 Ga.App. 517, 4 S.E.2d 75, 78, a conviction was affirmed although the medical witnesses refused to give their opinion as to the cause of death, in that case there was no other cause of death suggested by evidence except the wound inflicted by the defendant, whereas here the witness testified that the tumor caused the death. Judge Guerry, dissenting in the Long case, had this to say:
State v. Bynum, 69 Ohio App. 317, 43 N.E.2d 636:
'There is no evidence in this record, medical or otherwise, that the death of James Charles on September 19, 1941, was caused, or probably caused, by the assault at the hands of the defendant on or about March 15, 1941. The only testimony on the subject, given by the only medical witness offered, was that of the county coroner who performed an autopsy upon the body the day following death, assisted by another doctor who was not a witness at the trial. The coroner, testifying from records furnished by the hospital and by the doctor who made laboratory tests of certain tissues from decedent's head, from X-rays taken at the hospital, and from the results of the autopsy, gave the official cause of death as 'a meningitis.' He testified that an old fracture of the skull was found, in connection with which an abscess had formed, and that if the assault of March 15th caused the fracture, which he did not know and could not say, that it 'might have been' the cause of death on September 19th; that it 'could have been' the cause of it; * * *
Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802:
'The crux of the problem presented on appeal is whether the beating administered by defendant was the 'legal cause' of the thrombosis which set off a chain reaction eventually resulting in death.
'(1) The Commonwealth, in an effort to prove legal causation, produced one expert medical witness who had performed an autopsy on the body of the deceased. After a careful study and evaluation of the notes of testimony, we are drawn to the conclusion that at best his testimony indicates that defendant's assault on the deceased Probably caused the death.
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