Bowles v. The State

Bowles v. The State. Indictment for Murder. 1. Might, and attempts to evade justice, proof of; relevancy and effect of. All evasions or attempts to evade justice by a person suspected or charged with crime, are circumstances from which guilt may be inferred, if connected with other criminating facts; and though not of themselves warranting a conviction, they are relevant evidence, it being the province of the jury, to determine their weight, in view of all the facts and circumstances of the case, under appropriate instructions from the court. Same. — Blight, for which no proper motive can be assigned, and remaining unexplained, is a circumstance proper to be submitted to the jury, in connection with other criminating evidence against the accused; and where he fled after the commission of the offense, the State may introduce a requisition upon the governor of a sister State, to show how he was arrested. 3. Bad character of deceased; when immaterial. — Proof of the bad character of the deceased for turbulence and violence can not be received, when there was no act or conduct of the deceased, at the time of the killing, which can be illustrated by such bad character, or when there is no evidence tending to show that the killing was in self-defense; and charges based on such bad character, in such a case, are properly refused. 4. Negligence of wounded man or nurses; when immaterial. — "Where death is caused by a dangerous wound, the person inflicting it is responsible for the consequences, though the deceased might have recovered with the exercise of more prudence and with better nurses; and a charge is properly refused which instructs the jury, without regard to the character of the wound, that the prisoner can not be convicted of murder, although the wound was inflicted with malice aforethought, pursuant to a formed design to kill, &c., if the wounded person died from the gross carelessness of himself or nurses. Appeal from City Court of Mobile. Tried before Hon. O. J. Semmes. Tbe appellant, Bowles, was convicted of tbe murder of Albert Smith, and sentenced to imprisonment in the penitentiary for life. Tbe evidence shows tbat Bowles lived some seven miles from tbe city of Mobile, and on the morning of tbe shooting, tbe deceased and one or two other persons passed by the bouse in which appellant, Bowles, lived, on their way to Mobile, as one of these persons bad promised to call Bowles as they went by. On tbe return of tbe party from Mobile, as they got near tbe bouse, tbe deceased being in tbe road, some few feet from tbe gallery of tbe bouse, Bowles came out on tbe gallery, and, addressing tbe party, asked: “ Why did’nt you boiler this morning ?” Deceased asked who be was talking to, and Bowles replied “ as soon to you as any other man.” Deceased replied, “come out here and I will talk to you.” Bowles said, “ I’ll come out and shoot you too,” and be then came out to where deceased, was, drawing a pistol as he came, and when within three feet of deceased presented the pistol. One of the party begged him not to shoot, and he lowered his pistol for a few moments, and again raised it and fired on deceased, who was leaning on a small stick, which he always used to assist in walking, as he was lame in one leg. The deceased was unarmed and had made no motion or attempt to use his stick or other weapon. One of the witnesses caught hold of the prisoner, and remarked that he bad killed the man for nothing, but prisoner shook witness off, saying that he would shoot him or any other man when he was mad. Smith'fell soon after he was shot, and Bowles fled. One witness testified that “ about two weeks before the shooting, deceased and Bowles had some words at a timber camp, Smith coming into camp, and Bowles right after him; that Smith said, to one of the men, the boss (meaning Bowles) is pretty hot this evening, and, continuing his remarks, said ‘ I’ll make him hotter than he is before I leave camp.’ Bowles came up and asked what he said, and Smith replied ‘nothing to you, sir.’ Bowles then cursed Smith,fand the latter replied, ‘ we will settle this some other time.’ Just before this Bowles had discharged Smith for disobeying instructions about cutting logs.” Dr. Grace, the physician who visited Smith the morning after the shooting, testified, he called for three consecutive days afterwards, and found the patient improving so rapidly that he thought it unnecessary to visit him again. He, therefore, discharged his patient, enjoining upon him and his attendants, the absolute necessity for his remaining in the house, where he was, and refraining from eating any solid food. The witness testified that “ the ball entered the left breast, just below the sternum, and ranged backward and outward, through the lower lobe of the lung; that he (witness) did not regard the wound as necessarily dangerous, but feared pneumonia might set in. Two weeks after this, witness was sent, for to see Smith at his own house, some twelve miles distant from the house into which he was taken when first shot, (and being satisfied from the information given him that the patient would die before he could reach him, did not go.” Witness was satisfied from the symptoms detailed to him that Smith died of pneumonia. Dr. Scales, who heard Dr. Grace’s testimony as to the wound, testified that “ if the wound was on the left side of the sternum, and just below, the ball would cut the diaphram, the liver and the lungthat a ball taking that course would be likely to produce pneumonia, which is very dangerous when superin-duced by a wound in the lung; that such a wound could not be declared mortal or necessarily dangerous, or otherwise, within three days after it was inflicted. Five or six days after receiving the wound, Smith ate roasted sweet-potatoes, and with some assistance walked to a wagon which had been sent for him, and rode over a rough country-road to his home, some twelve miles distant, where he died some twelve days afterwards. It was proved that the deceased’s general reputation was that of a violent and turbulent man, while appellant’s general reputation was shown to be that of a quiet, peaceable and law-abiding man. “The látate offered in evidence a requisition from the governor of Alabama on'the governor of Mississippi for the arrest of defendant on this charge, and when the defendant objected to its introduction, the court allowed it to go to the jury to the extent of its being the paper, or authority, upon which the defendant was arrested in Mississippi j whereupon defendant objected, and his objection being again overruled, he excepted.” The defendant requested the following charges in writing: “ 1. If the deceased was a violent, turbulent man, and had threatened to kill the defendant, or to do him some great bodily harm, just previous to his being shot by the defendant, — and- this is a question for the jury — the law justified the defendant in carrying a concealed weapon, and to protect himself with it against the defendant [deceased?] if necessary.” “2. The court charges the jury as a matter of law, that if one is shot, stabbed, or otherwise wounded or injured by another, even though the injury were inflicted after premeditation and with a formed design to kill, and the wounded person should die from the unskillful treatment of the physician, or the gross carelessness of himself or his nurses, the party inflicting the wound or injury could not be convicted of murder.” The court refused both these charges, and the defendant duly and separately excepted. The admission of the requisition on the governor of Mississippi, and the refusal to give the charges requested, are now assigned as error. John H. Glennon, for appellant. The charges requested, asserted correct legal propositions, arising out of the testimony, and should have been given. — 1 Brick, p. 479, § 439; Pritchett v. The State, 22 Ala. 39. The requisition on the governor of Mississippi was illegal and irrelevant evidence. Its only effect was to prejudice tbe prisoner’s defense, by proof of matters not connected with tbe killing. Jno. W. A. Saotobd, Attorney-General, contra. Tbe first charge requested was properly refused. Tbe deceased was not doing anything wbicb could be tortured into an attempt to carry out any threat, or do tbe appellant any bodily barm. Tbe case made by tbe record has no element of self-defense in it. — Franldin v. The State, 29 Ala. 14. Tbe second charge has already been condemned by tbe court in McAllister’s case (17 Ala. 434), and was properly refused. — 2 Brick. Grim. Law, § 653. Tbe defendant fled immediately after tbe shooting. Tbe requisition was admissible to rebut the idea that be bad returned voluntarily to stand bis trial. [MAJORITY — BRICKiELL, O. J.] BRICKiELL, O. J. All evasions, or attempts to evade justice, by a person suspected or charged with crime, are circumstances from which a consciousness of guilt may be inferred, if connected with other criminating facts. Of themselves, they may not warrant a conviction, but they are relevant as evidence, and tbe weight to which they are entitled, it is the province of the jury to determine; under proper instructions from the court. — People v. Stanley, 47 Cal. 113; (S. C.); 2 Green’s Or. Rep. 437; Wharton on Homicide, § 710; Burrill on Oir. Ev. § 22, 469. Plight, for which no proper motive can be assigned, and which remains unexplained, is a circumstance all authorities agree it is proper to submit to the jury, in connection with other evidence tending to show tbe guilt óf tbe accused. In tbe old common law, the rule which passed into a maxim, was, that flight was equivalent to a confession of guilt: fatetur facinus qui judicium fugit. At tbe present day it is regarded as a mere criminative circumstance, indicative of a consciousness of guilt, and of an attempt to evade justice, wbicb is subject to infirmative considerations that may deprive it of all force. Tbe unfavorable inference against tbe prisoner would be lessened if be voluntarily returned and surrendered himself to answer the accusation. Whether its force, as a criminative fact, is increased by proof that his return was compulsory under the process of the law, and that tbe flight was beyond the jurisdiction of tbe State, it is for tbe jury to determine. We think it permissible to prove the fact of flight, and all the facts connected with it, either to increase or diminish the probative force of the fact itself. The requisition of the governor for tbe arrest and surrender of tbe prisoner, was admitted by tbe City Court, for tbe sole purpose of showing tbe authority under which he was arrested in Mississippi. For that purpose it was admissible in the view we have taken. 2. There was no error in the refusal of the charges requested by the prisoner. — Pritchett v. State, 22 Ala. 39; Franklin v. State, 29 Ala. 14; Eiland v. State, 52 Ala. 322; McAllister v. State, 12 Ala. 434; Morea v. State, 2 Ala. 275; Parsons v. State, 21 Ala. 300. We find no error in the record, and the judgment must be affirmed.