Abner G. Baker, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 30 Fla. 41

Raney, C. J.: I. Upon the trial of this cause in the Circuit Court, Dr. Jackson, a witness for the State, was asked on Ms cross-examination who aided Mm in making' the internal examination of the body of the deceased, and he replied that it was Dr. J. P. Wall; and he was then asked : “Who requested you and Dr. Wall to do that?’’ and replied : “I think it was yourself.’’ The entry in the bill of exceptions at this point is as follows: “Counsel for the State objects, and asks what is the object of this.

Court sustains the objection, and counsel for the defense save an exception to the ruling of the court.” It is urged before us that the impression made upon the jury by what is shown by this entry was the same as though the answer had been stricken out as immaterial; that the enquiry was material and proper ; that the defendant had the right to bring to the knowledge of the jury, whether the autopsy was made at the instance of the State or of the accused ; that whereas, in the absence of any showing to the contrary, it is a natural inference that a proved autopsy was procured by the State, yet in case of the State’s failure or disinclination to have one made, the defendant’s willingness and promptness in causing one to be had, are legitimate facts for the consideration of the jury.

All that is necessary to be said in disposing of the point is, that counsel for the prisoner, when asked what his objqct was, does not appear to have made it known to the court. If his object was as indicated here, -that court was not informed of it. Having got before the jury the fact that he had requested the doctors to make the internal examination, counsel fails to disclose his object when called upon by the State for it.

Without intimating any opinion as to whether it would be proper under any circumstances to permit the defendant to show to-the jury that an autopsy had been made at his instance, it is sufficient to say that it does not appear that any application to do so was made to the trial court in this case, and that the judge did not err, even if his action can be held tantamount to striking out the reply of the witness to the last question. When the question shall have been presented to a trial court and ruled upon, it will be time enough for us to consider it.

The fact stated by the answer was, as it appears in this record, entirely immaterial to the defendant’s case. McLean vs. Spratt, 20 Fla., 515 ; Green-leaf’s Ev., sec. 51 a ; Yan Burén vs. Wells, 19 Wendell, 203 ; Crenshaw vs. Davenport, 6 Ala., 390 ; Tuggle vs. Barclay, Id., 407; Abney vs. Kingsland, 10 Ala., 355 ; Yeatman vs. Holt, 6 Humph., 375 ; State vs. McAllister, 24 Me., 139. II. The same witness, Dr.

Jackson, having testified on cross-examination that on account of discoloration,, he could not tell whether the veins or arteries at the brain were diseased, was then asked: Do you think if these veins and arteries had been healthy, that two blows on the face of ordinary force that would have caused the marks you saw there, would have ruptured those blood vessels ? To this question the State objected on the ground that it was improperly put, and wras immaterial, and the court sustained the objection ;, and the defendant excepted.

We are satisfied, on account of subsequent testimony of the same witness. that no injury has resulted to the defendant from this! action of the court, even if it was erroneous. Immediately after this ruling the witness, answering a question put by defendant’s counsel, said that it would be-very improbable that two blows upon the face and parts of the face, as testified to by him and leaving: the marks seen there, should produce death; and then on the re-direct examination he said it was very improbable that a blow on the face would rupture a blood vessel in the brain, the face having more or less-springs in it.

This testimony answers, in effect, the excluded question. Assuming that the witness meant that it was very improbable that the-blows would have ruptured a diseased vein and thereby produced death, the inference is necessary that it -would have been still more improbable that they would have had this effect on healthy veins. III. It is also complained that' there was error in permitting the State Attorney to ask Dr.

Wall, a witness for the defense, the following question: Would not a man in the condition you have testified this man was in, supposing him to be suffering from congestion of the brain, receiving two blows on the head or face, accompanied by the excitement of a fight, necessarily increase the congestion ?

The objection made to the question was, that it was based on a hypothesis not consistent with the facts testified to in the case-Whereas an expert may not be interrogated upon an hypothesis having no foundation in the evidence, it is yet not necessary that the hypothetical case put to him should be an exact reproduction of the evidence, or an accurate presentation of what has been proved. Counsel may present a hypothetical case in accordance with any reasonable theory of the effect of the evidence.

If the jury find that the facts on which his hypothesis, or theory of the effect of the evidence, is based, are not proved, the answer of the expert necessarily falls with the hypothesis. 1 Greenleaf on Evidence, 440; Wharton’s Crim. Ev., sec. 418; Lovelady vs. State, 14 Texas Ct. App., 545; Augsbury vs. People, 1 N. Y. Crim. Rep., 299; Cowley vs. People, 83 N. Y., 464; Guiterman vs. Liverpool, N. Y. & P. S. Co., Ibid, 358; People vs. Lake, 12 N. Y., 358; ITovey vs. Chase, 52 Maine, 304; Davis vs. State, 35 Ind., 496; Greenley vs. State, 60 Ind., 141; Guetig vs. State, 66 Ind., 94; Schlencker vs.

State, 9 Neb., 241. The failure of the “excitement of a fight,” objected to here, does not seem to us to present any inconsistency to the evidence; and there is in the question nothing .about “continued excitement.” Whether there was a fight between the accused and deceased, in the sense of an altercation, which could and naturally would have caused a feeling of excitement in the deceased, was a question for the jury to pass upon finally.

Of •course no other “fight” than the altercation, as it is described in the testimony to have occurred, could have been understood by the jury as referred to by the question, or have been considered by them in making up their verdict. IY. The fourth and fifth assignments of error are submitted together as presenting but different aspects of the action of the court complained of.

The bill of exceptions, after stating the conclusion of the testimony, reads as follows: “And thereupon the counsel for the State of Florida, in the course of his argument to the jury, did make a certain statement, to the making of which statement in argument, the defendant by his attorney did then and there, standing up in his place in open court, object and ask permission to be heard; but the said judge did then and there refuse to hear the said attorney for the defendant, or to permit him to state his said objection, and did-order the said attorney for the defendant to take his seat, to which action and decision of the said judge, the said attorney did then and there object.” As stated in the counsel’s brief, the error alleged in the former of these two assignments is the refusal to hear the objection which counsel then desired-to make, and that of the other one is ordering counsel to take his seat, and refusing to hear him when he stood in his place and claimed the attention of the court.

It is apparent that the above extract from the bill of exceptions does not show what the statement,' which it was the purpose and desire of counsel to show to object to, was; and surely an appellate court never will say that any act in pais of a trial court is reversible error when it does not know what the act complained of, or which it was sought to object to, was. The mere fact that a trial court has deemed a statement or argument of ■counsel so palpably correct as to render any objection unworthy of the court’s countenance, is no evidence to an appellate court that error has been committed.

In the absence of any presentation, in due form in the bill of exceptions, of the .statement or argument which it was desired to object to, we. can not say that the court erred in requiring counsel to resume his seat, but must presume that there was nothing said to which a.n objection should have been entertained. It is established law, decided time again, in this court and elsewhere, that in all such matters, the presumption is that the trial court acted rightly, unless the contrary is affirmatively shown. In Mainard vs. Reider, 2 Ind. App., 115, and Newton vs.

State, 21 Fla., 58, 91, cited by counsel for plaintiff in error, the objectionable remarks are set out in the bill of exceptions, and were held prejudicial to the parties appellant. See also Willingham vs. State, 21 Fla., 701.

To hold that error is shown by the record on this point, would be to decide nothing less than that the Circuit Courts have no control over the argument of causes before them, and that any and every statement of an attorney in submitting his client’s case is the legitimate subject of objection and the due occasion for interruption an'd delay, by opposing counsel, and that all such objections, however frivolous or frequent, must be listened to. Any such idea is fatal to the orderly, wise and proper conduct of judicial proceeding and can not be tolerated.

The principle, that the matter of which error is alleged must be presented to the appellate court as it occurred, is as applicable to matters of this kind as of any other nature. How can we say that a court erred in refusing to listen to an objection, unless we are informed what the matter which it was desired to object to, was; or that it was wrong in requiring counsel t'o resume his seat during argument of the opposing attorney, unless it is made to appear that there was something of objectionable nature to which he should have been allowed to object.

The right of counsel to be heard is not under estimated by us in its importance to clients or to the bar; but an abuse of sound discretion by a court can not be assumed for the benefit of either of these classes of persons.

It may be proper to remark, if it can be inferred that the statement attributed to the State Attorney by the motion for a new trial is the one referred to by the above recital in that motion is, in view of the denial of the motion, not evidence that any such statement was made, but if it was, the affidavit of that officer, incorporated into the bill of exceptions, shows that the judge promptly sustained an objection to the only improper remark made, and that everything was done necessary to remove any improper impression which it could have made. Y. This brings us to the sixth assignment of error.

The first and second grounds of the motion for a new trial are, in effect, that the verdict was contrary to the evidence and the weight thereof; and the third ground is, that the verdict is contrary to the law; and the fifth ground is, that the jury did not give the defendant the benefit of a reasonable doubt. Manslaughter in the fourth degree, of which the defendant was convicted, is thus defined by the criminal code of 1868, p. 352, McClellan’s Digest: Sec. 17.

The involuntary killing of another by any weapon, or any means neither cruel nor unusual, in the heat of passion, in any cases other than such as are herein declared to be excusable homicide, shall be deemed manslaughter in the fourth degree. Sec. 18. Every other killing of a human being, by the act, procurement, or culpable negligence of an other, where such killing is not justifiable or excusable, or is not declared in this

chapter murder, or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.

Counsel contending, under the third ground of the stated motion, that the evidence, even if it shows some casual connection between the striking of the blows by the defendant and the death of Brown, did not warrant the verdict, argues that in order to sustain a verdict of manslaughter, the death of the person must have been not only directly or indirectly caused by the acts of the defendant, but must have been such as .to be one of the reasonable or probable results of such acts, and if it be such as could not have occurred to* the defendant as a probable result, then he should not have been held liable; that to hold otherwise is subversive of the accepted doctrine of intent which is the logi- ■ cal foundation of the law regarding crimes which are ■ uicdum in se; that if individuals are strictly held to a-responsibility for the probable and reasonable results of their acts, society will be amply protected' without the injustice and. oppression likely to be caused by the-more extreme view necessary to sustain this verdict., if it can be sustained by any possible view of the evidence in this case.

Of course it is not necessary to the support of a verdict of manslaughter in the fourth degree, that the death of the person killed should have been a reasonable or probable result of the defendant’s acts, in the sense in which this expression is used by counsel, or, in other words, the fact that it could not reasonably have occurred to the defendant or did not occur to him that death was a probable result of the'act, does not prevent a conviction of manslaughter in this degree.

This being so, it is only necessary to say to the remainder of counsel’s contention, that its discussion is beyond our functions, and that it can find practical consideration in the legislative department only.

Tt is urged under the first, second and fifth grounds of the motion, that the evidence tends far more •strongly to prove that the blows struck by the defendant had no casual connection whatever with the •death of Brown, than to prove the contrary; and further, that the weight of evidence was clearly against the jury’s conclusion, and did not show beyond a reasonable doubt that lie death was caused or hastened by the blow in any legal or legitimate sense. In support of this position it is asserted by counsel that both Dr. Jackson and Dr.

Wall testified that the death was directly the result of the effusion of blood found at the base of the brain, and that it was improbable this effusion was caused by blows struck by Baker. Dr.

Jackson states, it is true, that it was very improbable that two blows upon the face or the parts of the face, ■as testified to by him, should produce death; and again that it was very improbable that a blow on the face would rupture a blood vessel in the brain, the face having more or less springs in it; but he had previously said that these blood vessels rupture from disease, or accelerated action of the heart, and that, as a rule, both go together; and that such ruptures might be brought about by a blow; and again, having expressed the opinion that hemorrhage at the base of the brain brought about Brown’s death, he says that .such hemorrhage might be caused by a severe blow or .some excitement causing * * action of the heart.

And immediately after saying it was very improbable •that a blow on the face would rupture a blood vessel, lie states, as his medical opinion, that the two most probable causes of tlie breaking of those blood vessels were sudden excitement of tlie heart, or some blow, yet he could not tell what was the real cause. Dr.

Wall’s statement is, that two ordinary blows that would cause the wounds found on the face of the deceased, did not result in his death.' 'Again, asked if, in his opinion, after making an examination of the man’s body, those blows on his face caused his death, he replied: “The blow upon the face, of itself, would hardly have produced this. If there was a blow upon the face when the man fell and struck something hard, we might have this condition, or if his head was resting on a hard substance wdien he received the blow, we might have this condition.

I would not say positively that the blow had nothing to do with this rupture, though I think it very improbable.” From the ■above

summary of the evidence, as well as the general statement preceding this opinion, it will appear that counsel would be justified in saying that Dr. .Jackson gave it as his opinion that the hemorrhage or effusion of blood at the base of the brain was the cause •of Brown’s death; and also in saying that he gave it as his opinion that it was very improbable that the blows, of themselves, produced the rupture or hemorrhage directly, but we think there is nothing in Dr. .Jackson’s opinion that militates against the idea that the blows may have indirectly, or through excitement causing accelerated heart action, produced the rupture .and hemorrhage, but this view clearly sustains this theory.

It is true that he himself could not decide what was the real cause of the rupture, but he distinctly says that the two most probable causes of the breaking of the blood vessels were sudden excitement of the heart, or some blow. It is a patent fact that Dr. Wall did not state, nor was he asked, what in his opinion, produced the rupture, or hemorrhage, and death; still the only inference to be drawn as to his opinion of the death is that it was the result of congestion accompanied by effusion. True he says, as did Dr. Jackson, that the two blows did not produce death, but it is evident that he, like Dr.

Jackson, meant by this statement that they did not do so di - rectly, or of themselves. We must admit, however, that in his opinion it was very improbable that the blows had anything to do with the death of the deceased, though he would not take the responsibility of saying positively that they did not.

He admits that the excitement caused by a fight and a man striking a blow might insrease congestion, though not always, and that the reception by the deceased of two blows on the head or face, supposing him to be suffering from congestion of the brain, might, when accompanied by the excitement of a fight, tend to increase the congestion, at least if the congestion was active, though, if we understand him, it might not if it was passive in its character or classification. We do not agree with counsel in their view of the effect of the evidence. There is no doubt that death followed tlie blows immediately.

And assuming even, as Dr.

Wall says may have been .the case, that there was congestion and even slight effusion at the base of the brain on the morning of the fatal day, when the deceased was seeking relief from pain by having the bar-keeper pom* ice water on the annoying spot, and that the use of beer ivould cause the heart to throw the blood with more force, and, as we mast infer, increase the congestion or effusion, there is in these facts, or either of them, nothing which militates against the theory that excitement producing accelerated action of the heart would have increased the congestion, or have started the hemorrhage or effusion originally, or have renewed that which may have been going on that morning.

There is certainly no proof that Brown was suffering pain after he returned to his boarding house, or that he was in a dying condition when the defendant entered the room; on the contrary, the jury were justified in concluding that he had so far recovered from his spree of the previous night as certainly not to be in a dying condition.

There is nothing in the testimony of Bowen that tends against or does not support this conclusion; and the deceased’s answering the accused and rising in his bed to nearly a sitting* posture, as stated by the accused, or to a less extent, as was the impression of Bowen, refute the idea that the juncture of his death, was simply concomitant with the assault upon him, but attributable to other causes, and not produced or hastened by such assault. Dr. Jackson says lie saw nothing about the-signs of heart disease to cause death.

There is no testimony which can be pointed to as proving or justifying the inference that Brown would have died then and there if he had not been assaulted, or that when he went upon the bed he was in a condition which indicated that his end was at hand. An assumption that the deceased would have died when he did, had no assault been made upon him, carries us into the domain of mere speculation ; neither of the physicians said that he would, nor is there a single item of testimony upon which the finger can be put as supporting such a theory.

The only rational view of the case is that Brown was in such a physical condition, or state of health, as made the assault upon him fatal in its-consequences, and that the effect of that assault acting directly or indirectly upon that condition, brought to-a close a life which but for it would have lasted longer.

There is in the testimony nothing capable of raising a reasonable doubt of'the correctness of this conclusion a mere speculation that he might have died, is not a reasonable doubt, Of course no one believes that this assault would have killed a healthy man, but that it was calculated to excite in the highest degree any or- , dinary man, considering the unfair advantage at which the deceased was taken, the character of the blows, and the language and action of the accused, is indisputable.

That the attack was hostile, excited and angry, is evident both from Bowen’s account and that of the accused ; and the statement of McDonald also supports' this view.

The blows were at least severe; the' language of the accused exhibited very positive hostility; and the degree of his excitement is well indicated by not only his acts and language, but by his own statement, that Bowen's “voice brought me to myself.”' The testimony of the experts furnishes a reasonable - theoi y of the operation of the assault as the cause of' death ; their cautiousness as to saying what produced' the congestion and hemorrhage did not relieve the-jury from the duty of passing upon the question of the prisoner’s guilt, nor does it raise any reasonable doubt of the correctness of their decision that the-assault was the cause of the death.

The testimony. supports the judgment to the exclusion of any reasonable doubt; and there is in the authorities cited by counsel for the accused (Wharton’s Criminal Law,. 311; Robinson vs. State, 16 Texas Ct. App.,' 347; Lucas vs. State, 19 Jbid, 79 ; Bush vs. Commonwealth^ 78 Ky., 268) nothing that shakes this conclusion. VI. The only remaining point is as to the charge to-the jury.

In his charge the judge"-said, inter aliar “The State must prove that the defendant assaulted Brown within Hillsborough county, State of Florida that he assaulted him, and that Brown’s death was caused or hastened by the assault alleged to have been committed upon him by the defendant at the bar.

All. these material facts are incumbent upon the State to-prove ; not for the defendant to disprove.” It is urged, that this was misunderstood by the jury and misled ■ them, in that the terms or idea, death hastened by th e, ■assault, might have been misunderstood to include a collateral as well as a casual relation between the two.

The argument used is : If a person could be supposed -tobe in such a condition through the progress of some insidious disease as that an unexpected touch should ■ cause abnormal heart action sufficient to produce death, , and another person, ignorant of this peculiar condition and with no intention of inflicting more than temporary discomfort of the body, should come up behind the first and inflict a blow however slight and with however innocent intention and the death of the diseased person should ensue, the innocent, though technically guilty movant, would be as much guilty of ■manslaughter as was this defendant; that in either case the death ivas not the result of the blow, but the result of a pre-existing condition, and the blow only a collateral circumstance at most, assisting to aggravate the condition.

We must give the jury the credit of understanding that the court was speaking, as it was, of “the assault” testified to by the witnesses or jn’oved by the evidence, and of so applying the remarks of the judge ; and must not impute to them a disregard of the actual case before them and action upon an extreme suppositious ■ case like that put by counsel. There is no ground for -even supposing that the jury was misled or misunder•.stood the charge. The judgment is affirmed.