Williams v. State

Robinson, J.,

delivered the opinion of the Court.

The prisoner, the captain of an oyster boat, was tried for the murder of Otto Meyher, one of the hands under his employment.

The question presented by the first exception is, whether it was competent for the State to prove, that on the day before the fatal assault, and several days prior thereto, the prisoner had beaten, and otherwise maltreated the deceased? The charge of murder against the prisoner necessarily involved the question of malice, for there must be malice express or implied, to constitute murder. As bearing then upon this question, the evidence was clearly admissible. In the absence of evidence tending to show justification, excuse or extenuation, malice it is true may be presumed from the proof of the homicide itself, but the State is not bound to rely upon this presumption, and may offer other and independent evidence tending to prove malice — and this too, 'without regard to the evidence offered or defence set up by the accused.

Having proved the prisoner had assaulted and beaten the deceased in the most cruel and inhuman manner just before the day of the fatal assault charged in the indictment, the State had the right to follow up this evidence and show, that prior to these assaults Meyher was in ordinary health, and that afterwards he complained of pains in his head and breast, and that he continued to complain up to the day of the homicide. To sustain the indictment the State was bound to prove that Meyher died from blows and injuries inflicted by the prisoner; and in the determination of this question, the physical condition of Meyher at the time these injuries were inflicted, was a material inquiry. An injury that may prove fatal to one already enfeebled and suffering from great bodily harm, may not prove so to one in robust and vigorous health. The ruling of the Court in the fourth exception is one, we think, equally free of difficulty.

The proof shows, that on the morning of the 25th of November, 1884, the deceased being unwell, the prisoner gave him some medicine — that he attempted to work, but being unable to work, or because his work was not satisfactory, the prisoner beat him five or six different times across the back and sides with a shovel or handspike ; that evening the deceased complained of pains in his back and breast, and cried out “my God,” “my God,” and said he was sore all over. The next morning the deceased again tried to work, but being unable to wind up the anchor, one of the hands jerked, it, and Meyher fell upon the deck. While lying there the prisoner came up and kicked him several times, and every time Meyher shrieked, the prisoner pressed his foot heavily on his throat. After these brutal assaults the prisoner tied a rope around the body of Meyher, and fastening the rope to a hook in the front sail, dragged him from one end of the boat to the other. The deceased again promised to work, but he was very weak, and in the attempt to turn the crank of the dredge he fell lengthwise across the deck, and while lying there, the'prisoner again kicked him five or six times, and again pressed his foot on his neck. The prisoner then tied the thumbs of the deceased with a rope, and by the means of a hook fastened to the rope, the body of the deceased was hoisted until his feet were above the deck. After this, the deceased was put into a yawl boat and landed on the shore, where a few hours afterwards he died. The next day a jury of inquest was summoned, and Doctor Gill made an external examination of the neck of the deceased. In moving the head and neck backwards and forwards he at first thought he heard a crepitation, indicating the neck was broken, but not hearing the sound again he concluded he must have been mistaken, and was of opinion that the neck was not broken. Thus ended this imperfect and unsatisfactory examination, and tbe body was buried. On tbe 27th of December, one month afterwards, the prisoner was arrested and a second jury of inquest was summoned, and for the first time a thorough post-mortem examination of the body was made by Doctor Miles. The result of this examination, showing that the neck was broken, and that large dark-colored patches or bruises were found on various parts of the body, was offered in evidence. But objection was made to its admissibility, on the ground that the condition of the body one month after the deceased was buried, was not legitimate evidence from which the jury could reasonably infer its condition at the time he died.

A thorough examination made immediately after death, would of course have been more satisfactory and conclusive than one made some time afterwards. But the weight of the evidence was a matter for the jury, to be determined by them in connection with all the facts and circumstances in the case. The-mere fact, that the examination is made some time after death, is not in itself a reason why the result of such examination should be excluded, unless the interval is so great and the condition of the body is such, that the jury could not reasonably find whether its condition was to be attributed to ante-mortem or post-mortem causes. And such was not the case here. The weather was cold and decomposition had just set in. No difficulty was experienced by the physician in making the examination. He first began by making an external examination, moving the head and neck, and heard distinctly a crepitation of the bones of the neck, showing the neck was broken. He then made an incision in the neck and found there was a dislocation between the bones known as the atlas and axis — an injury which was, in his opinion, fatal. Large dark patches were also found on different parts of the body. If this evidence was not conclusive as to the condition of the body at the time it was buried, it was certainly legitimate evidence to be considered by the jury in determining that question.

In the sixth exception objection is made to the following question : “Suppose a man should be lying on the ground, prostrate, and another should place his foot upon his neck and squeeze or bear down violently upon it, would any result likely follow, and what would be that result to the neck ?”

The proof shows, the prisoner not only pressed his foot on the neck of the deceased while he was lying on the deck of the boat, but also afterwards while he was lying on the shore and just before he died, — and further, that when the examination was made by Dr. Miles, he found the neck was broken. Was this dislocation of the neck caused by the pressure of the prisoner’s foot on the neck of the deceased, was the question to be determined ? And this depended upon the strength of its parts, and their power to resist violence, involving necessarily the anatomy of the neck, and strictly within the rule in regard to expert testimony. We see no objection to the form of the interrogatory. If a wound is proven, an expert, it is conceded, may state the means by which it was inflicted. If so, the converse of the proposition is equally true. What would be the probable effect of a man’s pressing his foot with great force or violence on the neck of one lying on the ground, depended of course upon the pressure used and the strength of the neck to resist it, matters in regard to which an expert ought to be better able to form a judgment than ordinary witnesses.

As to the seventh exception, the proof shows not only that the prisoner beat the deceased with a hand-spike or shovel, no less than five or six times, but that afterwards he had what the witness termed “a snatching chill.” This evidence was sufficient certainly to serve as a basis for the hypothetical question put to the witness.

It was wholly unnecessary'in framing the question to refer to all the evidence bearing upon Meyher’s condition before and at the time he had “the snatching chill.” The defence had the right on cross-examination to inquire how far and to what extent the opinion of the witness would be modified by the consideration of other facts omitted from the hypothetical question.

In the eighth exception, Dr. Dale, witness for the prisoner, testified, he made an examination of the body on the 29th of December, two days after the examination of Dr. Miles, that he found an incision between the base of the occiput and the atlas which had severed all the posterior and part of the lateral ligaments and muscles that unite the atlas and the occiput; that he found no other injury about the neck; that in his opinion the neck was not dislocated, and further, that such injury could not have been produced by the pressure of the foot of a man on the neck.

The attorney for the State, then asked the following question : “Could all the posterior and a portion of the lateral muscles and ligaments, connecting the atlas with the occiput, be severed, as you saw them, by accident, or must such severance, if it existed, have necessarily been produced by design ?” It is well settled that an expert may give an opinion not only as to the nature and effect of an injury, but also the manner or instrument by which it was in* flieted. And such we understand to have been the purpose of this inquiry, although the answer of the witness is not set forth in the record. We see no objection to the question, although we.must confess in view of all the evidence, its bearing upon the issue before the jury, seems to us quite remote and shadowy.

In the ninth and last exception, the counsel for the prisoner proposed to ask Dr. Robertson, the following question: “The neck of the deceased, upon being examined by a physician, is together with the head, worked for ten or fifteen minutes in all directions, by a person acting under the orders of the physician, for the purpose of producing crepitation, the physician hears a single sound which he afterwards testified was crepitation, but the person having the head and neck in his hands, and others who were in a position to hear any such sound, failed to hear the same, and after so working the head and neck for that length of time, the physician said, ‘I was mistaken, the neck is not broken, and no further crepitation was heard or produced in the neck during the said examination, what would be your opinion as a physician as to the fracture or dislocation of the neck?”

(Decided 10th December, 1885.)

Now while an expert may give his opinion upon facts assumed to have been established, it would he against every rule and principle of evidence, to allow him to state his opinion upon the conclusions and inferences of other witnesses.

Here, the witness was not asked his opinion in regard to the dislocation of the neck of the deceased, based upon the failure of Dr. Gill, who conducted the examination, to reproduce crepitation, but based also upon the conclusions reached by Dr. Gill in regard to the subject-matter of inquiry. For this reason the question was clearly objectionable.. Finding no error in the several exceptions relied on, the rulings will be affirmed.

Rulings affirmed, and cause remanded.