Opinion
No. 32761.
November 29, 1937.
1. HOMICIDE.
Evidence that accused struck deceased when deceased was doing no overt act in or towards a combat, and that there was no conduct on part of deceased sufficient to produce any appearance that deceased intended any such act, did not authorize peremptory charge for accused under statute defining "excusable homicide" (Code 1930, section 989 (b, c).
2. HOMICIDE.
Evidence that blow by accused dazed deceased and caused him to stagger against another, who pushed him in attempt to straighten him up, and that deceased, still dazed and staggering, took a few steps, and fell against projection on iron post, which caused his death, sufficiently established that blow by accused caused death so as to authorize conviction of manslaughter, as against contention that push by third party was an "intervening cause" of death.
3. NEGLIGENCE.
An "intervening cause" must be an efficient cause, or something more than merely contributory to relieve original wrongdoer from liability for resulting injury.
APPEAL from the circuit court of Lafayette county. HON. T.H. McELROY, Judge.
R.L. Smallwood, Jr., of Oxford, for appellant.
It is the appellant's contention that this case clearly comes within sub-section B or C of Section 989 of the Mississippi Code of 1930 which the entire section is as follows: "989. Homicide — when excusable. — The killing of any human being by the act, procurement, or omission of another shall be excusable: (a) When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent; (b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation; (c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner."
The State's proof shows that after the appellant had struck or slapped the deceased, the deceased fell up against a post on the east side of the sidewalk and then fell toward the west, striking his head against a sharp rim or point on an iron post in the doorway of the cafe in front of which the argument occurred.
The appellant and the deceased were engaged in an argument and were walking up and down the sidewalk in front of the cafe, arguing and gesticulating, at the time the blow was struck, and there can be no doubt but what this occurrence would have been an ordinary and usual fist-fight wherein hot words preceded the fight, and suddenly a blow is struck in the heat of passion, had it not been for the misfortunate accident of the deceased striking his head against the iron post in front of the cafe.
Section 989, Code of 1930.
The court erred in refusing the peremptory instruction of the appellant at the conclusion of all the testimony.
The testimony of the witness, Tubbs, clearly shows that the deceased would not have struck his head on the sharp steel door facing had the said Tubbs not shoved the deceased in that direction. The court clearly erred, after all the testimony was before it, in refusing to grant the appellant a directed verdict at the conclusion of all the testimony. There is no proof nor can there be any basis for an inference that the appellant and the witness Tubbs, were acting in concert to bring about the injuries to the deceased, nor that the witness, Tubbs, volunteered to assist the appellant in his fight with the deceased, nor that they were accomplices, nor could the appellant foresee the independent and intervening action in that the said Tubbs would push the deceased into the steel post, after the deceased was struck by the appellant.
Nor was there any connection between the shove which the deceased received from the witness, Tubbs, and the blow which he received from the appellant, and the appellant certainly had a right for this matter to be presented to the jury, for if the jury believed that it was the shove of Tubbs that caused the deceased to fall and strike his head on the steel rim and that this was the direct and proximate cause of his death, then the jury would have, under their oaths, had to return a verdict of "not guilty."
People v. Elver, 59 N.W. 237; 13 R.C.L., page 750, sec. 56, and page 753, sec. 60; People v. Rockwell, 39 Mich. 503, 3 Am. Cr. Rep. 224.
W.D. Conn, Jr., Assistant Attorney General, for the state.
In the case of Dixon v. State, 104 Miss. 410, 61 So. 423, the court there said: "`When a man, in the execution of one act, by misfortune or chance, and not designedly, does another act, for which, if he had wilfully committed it, he would be liable to be punished — in that case, if the act he was doing was lawful, or merely malum prohibitum, he shall not be punished for the act arising from misfortune or a chance; but, if malum in se it is otherwise.' Archbald's New Crim. Proc. 9."
State v. Horton, 139 N.C. 518, 5 S.E. 945, 1 L.R.A. (N.S.) 991, 111 A.S.R. 818, 4 Ann. Cas. 797.
An assault and battery is a crime malum in se.
16 C.J., 58, par. 8.
Death unintentionally happening from a mere assault is manslaughter.
1 Wharton's Cr. Law, par. 450, page 688; 13 R.C.L. 848, sec. 152; 2 R.C.L. 529, sec. 6.
Appellant had struck deceased and had him staggering in such a way as that he ultimately fell. One is presumed to intend the natural or necessary consequences of his act. Having set everything in motion, can the appellant claim immunity from punishment by reason of the fact that there was some independent, intervening force. Such a situation is analogous to that line of cases in Mississippi which hold that a defendant cannot claim the benefit of an independent intervening cause, where he himself has set everything in motion. For instance, one may not claim that another died as a result of infection from a wound which he himself inflicted.
Springer v. State, 129 Miss. 589, 92 So. 638; Quinn v. State, 106 Miss. 844, 64 So. 738.
The testimony for the State shows that appellant struck the deceased when the latter was doing no overt act in or towards a combat, and that there was no conduct on the part of deceased sufficient to produce any appearance that the deceased intended any such act. Under these facts paragraphs (b) and (c), section 989, Code 1930, have no application, and appellant was not entitled to a peremptory charge.
It appears from the undisputed testimony that when deceased was struck he was not knocked down, but was dazed to the extent that he staggered as if about to fall and staggered against the witness, Tubb, who says that he pushed the deceased in the effort to straighten him up; that deceased still in a dazed and staggering condition, then took a few steps and fell against a projection on an iron post, and there received the injury from which death shortly ensued. Appellant contends that the action of Tubb was an independent, voluntary, intervening cause which became the proximate cause; wherefore appellant could be convicted only of an assault and battery, and not of manslaughter.
The wrongful force which caused the dazed and staggering condition of the deceased was put into operation by appellant and continued in operation or progress, and had not lost its identity or continuity as such, until the final injury. It was not the push given by Tubb which caused the deceased to fall against the iron post, but his continued dazed and staggering condition, for which appellant was the sole responsible party. Without the original wrong by appellant, what was done by Tubb would not have been sufficient to cause the deceased to fall, and there is no evidence sufficient to have authorized the jury to find otherwise. An intervening cause must be an efficient cause — something more than what is merely contributory.
Affirmed.