Opinion
No. 16,476.
Decided January 2, 1951. Rehearing denied February 19, 1951.
Defendant in error was charged in a criminal information under section 39, chapter 48, '35 C.S.A. Colo., with causing the death of one Denton Mead by driving an automobile while under the influence of intoxicating liquor. The trial court instructed the jury to return a verdict of not guilty.
Reversed.
1. CRIMINAL LAW — Homicide — Fatal Injuries. If a party wantonly attacks a fatally injured man, thereby hastening or contributing to his death, it is no defense to the charge of homicide that the fatally injured person would have died in any event.
2. Homicide — Fatal Injuries. "One is not relieved from guilt of the crime of homicide by reason of the fact that the person killed has previously been mortally wounded by another, if the act of the accused actually causes or accelerates death."
3. Homicide — Evidence — Directed Verdict — Appeal and Error. In a criminal prosecution for homicide, it is held on review that: "The evidence required submission of the question of guilt the jury; the court erred in directing a verdict of not guilty; and the judgment is reversed for this error in law."
Error to the District Court of the City and County of Denver, Hon. Edward C. Day. Judge.
Mr. JOHN W. METZGER, Attorney General, Mr. BERT M. KEATING, Mr. MAX D. MELVILLE, Mr. GERALD M. QUIAT, for the people.
Mr. JOHN F. MUELLER, Mr. GREGORY A. MUELLER, Mr. EARL J. HOWER, for defendant in error.
ARTHUR R. COX was charged in a criminal information, under section 39, chapter 48. '35 C.S.A., with causing the death of one Denton Mead, by driving an automobile in a reckless, negligent and careless manner and with wanton and reckless disregard of human life and safety, while under the influence of intoxicating liquor. At the close of all the evidence the court, on motion of counsel for defendant, instructed the jury to return a verdict of not guilty, on the ground that under the evidence it was equally possible that death resulted from a cause for which defendant Cox was not responsible, as from one for which he was responsible, and that under the facts here shown any determination of the cause of death could only be speculative and conjectural and could not support a verdict of guilty. The people bring the case here for a review of the court's ruling.
There is no substantial dispute as to the facts. In brief, the evidence discloses that about 9 o'clock p.m., on December 18, 1948, a very cold night, decedent Mead was thrown from the car which he was driving, for a distance of about ten feet to the middle of the street, as the result of a collision of his car with a heavily laden truck. Shortly thereafter, as he lay on the pavement, he spoke to a witness who had gone to his assistance, asking where he was, saying that he wanted to go home. When told that the ambulance was coming, he said he didn't want an ambulance, he wanted to go home. A little later he said he was cold and began to shake. A coat was placed over him and he was partially raised off the cold pavement. He then told the witness that he would like to get up, or to help him up. His voice was neither faint nor loud; the conversation was normal. One of the patrolmen present testified that when he saw Mead, after the first accident, he did not seem to be badly injured. Just as effort was being made to place a canvas underneath him, he started to say something further, when while he was yet speaking, he was struck by a car being driven at a high rate of speed by defendant Cox, which threw him forward some forty feet along the pavement where he was found to be dead when examined immediately afterwards.
Autopsy disclosed numerous abrasions, contusions and lacerations, particularly marked on the face; fractures of both collarbones and the first rib on both sides; fracture of the sternum or chest bone, and the left hip bone, "with extension of this boney prominent into the bladder which ruptured the bladder"; also an extensive fracture of the left frontal bone extending into multiple fracture of the base of the skull, with separation of the bony parts and bruising and tearing of the brain and of its covering.
The two pathologists who performed the autopsy testified that all the injuries were inflicted before death; that the head injuries were the direct cause of death; that multiple fractures and internal injuries were contributing causes, and that it would have been impossible for a person suffering such injuries to have spoken rationally or have been conscious after the injures were incurred.
To the contrary, two pathologists and a neurologist were called as witnesses in behalf of defendant and each testified that in his opinion it was possible that a person, suffering the injuries shown by the autopsy report and testimony, could have regained consciousness and uttered words as Mead did. None of defendant's witness actually saw Mead's body, and they knew the extent of his injuries only as appeared from the autopsy report.
It may be, as declared by the trial court, equally possible that Mead was fatally injured in the first accident rather than as a result of being struck by defendant's car. If so, that alone does not absolve defendant. I may not wantonly attack a dying man, and if thereby I hasten or contribute to his death, it is no defense that he would have died in any event.
In State v. Smith, 73 Iowa 32, 34 N.W. 597, defendant's wife died following a beating by him. She was intoxicated at the time, had suffered from exposure, and was afflicted with a heart condition which might cause very sudden death. One of the examining physicians testified that he did not consider the injuries sufficient to account for her death — not of themselves — but that in his opinion they contributed to or accelerated her death in some degree. The other testified that if the woman was not dead and he was called to treat the wounds they found, he would not consider them even serious. The court said, "It surely ought not to be the law that because a person is afflicted with a mortal malady, from which he must soon die, whether his ailment be caused by natural or artificial causes, another may be excused for acts of violence which hasten or contribute to or cause death sooner than it would otherwise occur," and conviction of manslaughter was affirmed.
In Duque v. State, 56 Tex. Cr. 214, 119 S.W. 687, after decedent had been beaten by a third person, defendant also gave him a beating, and it was held that if defendant contributed to bringing about or hastening death he would be guilty of homicide regardless of whether the first assault ultimately might have caused death.
In State v. Weston, 155 Ore. 556, 64 P.2d 536, defendant shot a deputy sheriff as he lay in the roadway, after being shot by another, with no signs of life other than breathing, gurgling in his mouth, and the flow of blood. The shot from defendant's gun entered the left arm and face, breaking bones in the forearm. The wounds were not mortal, but the physician who performed an autopsy testified, "I certainly would think that the broken bones in the forearm and the hand and the wounds in the face would contribute to hasten death by virtue of shock and the little loss — or local loss of blood, whatever it might be, in addition to that already occurring in the chest and abdominal cavity." The court said, "It may be that Loll was mortally wounded by Fiedler; nevertheless, the defendant was guilty of the crime charged in the indictment if the effects of his shot hastened Loll's death," and conviction was affirmed. In State v. BeBee, 113 Utah 399, 195 P.2d 746, the court said: "The evidence was uncontradicted that at the time the second shot was fired decedent was still alive. The first shot knocked decedent down and while he appeared to be struggling to get up, defendant shot him again. As long as there is life in a human being the extinguishment of it may be homicide. Where it cannot be determined which of the wounds received by a decedent caused or contributed to his death in becomes a question of fact for a fury to determine."
In State v. Francis, 152 S.C. 17, 149 S.E. 348, 364, the court, quoting from 21 A. E. Ency. of Law (2d ed), p. 92, said: "But though a human body must be alive in order that it may be the subject of homicide, yet the quantity of vitality which it retains at the moment the fatal blow is given, and the length of time life would otherwise have continued, are immaterial considerations. If any life at all is left in the human body, even the least spark, the extinguishment of it is as much homicide as the killing of the most vital being."
"One is not relieved from guilt of the crime of homicide by reason of the fact that the person killed has previously been mortally wounded by another, if the act of the accused actually causes or accelerates death." 26 Am. Jur. 192, § 49.
"Responsibility attaches where the injury materially accelerates the death, although the death is proximately occasioned by a preexisting cause." 40 C.J.S., 855, § 11 d.
The question for resolution in the instant case, then, was not as considered by the trial court, whether the injuries inflicted by defendant were the proximate cause of death, but rather whether or not those injuries hastened or contributed to death. Mead was alive and engaged in speaking rationally when struck by defendant's car. He was dead immediately afterwards. The blow inflicted was so violent as likely to be fatal regardless of prior injuries, and such as inevitably to cause serious bruises, contusions and shock. Presumptively in such case that blow caused the death. True, there is no expert testimony here as to which of the many injuries were then received and none that such injuries actually did contribute to or hasten death, but we think the blow was such as not to require expert testimony to that end. That those effects are the natural and inevitable consequences of such a blow as was inflicted by defendant's automobile is a matter of common knowledge.
As said in State v. Sala (Nevada), 169 P.2d 524: "As to the element of the cause of death, it was sufficient if, from the evidence, it was proven that the injuries inflicted by the second series of beatings were of such a nature that, in their natural and probable consequence, they would produce death, or at least materially contribute to and accelerate same."
The evidence required submission of the question of guilt to the jury; the court erred in directing the verdict of not guilty, and the judgment is reversed for this error in law.
MR. CHIEF JUSTICE HILLIARD and MR. JUSTICE HOLLAND dissent.