Defendant was convicted of murder. The Superior Court, Sussex County, entered judgment, and defendant brought error. The Supreme Court, Southerland, C. J., held, inter alia, that evidence, which revealed that deceased had died of massive pulmonary embolism following skin graft operation made necessary by gun shot wound inflicted by defendant, was not sufficient to establish that gun shot wound was not cause of death.
Daniel J. Layton, Jr. and Everett F. Warrington, Georgetown, for appellant.
John J. McNeilly, Deputy Atty. Gen. (Vincent A. Theisen, Chief Deputy Atty. Gen., on the brief), for the State.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
, Chief Justice.
The appellant, David Warren Quillen, was indicted and tried for the murder of Raymond L. Banks, Sr., by shooting him with a shotgun. Quillen was found guilty of murder in the second degree, and sentenced to imprisonment for life. He appeals, alleging error (1) in the refusal of the Court to quash a panel of additional jurors, and (2) in the charge to the jury.
A brief summary of the State's case is as follows:
[49 Del. 117] Quillen and Banks owned adjoining farms in Baltimore Hundred, Sussex. There had apparently been trouble between them. On December 8, 1952, Banks, his son Raymond, and some other men were working on the Banks farm at a point near the division line. During the morning Quillen had come out on his farm and watched the work for a while and about one o'clock Quillen again came out with his son Harry, who brought a tractor and started ploughing a rye field that Banks had sown on his own farm. No trouble occurred at that time.
At about 4:30 in the afternoon the Quillens returned. Harry began ploughing again in the rye field. Banks asked Quillen to ‘ talk this over’ . Quillen replied: ‘ I didn't come here to talk. I came here to kill or be killed.’ Further words were spoken-not provocative on Banks' part-and Quillen then struck Banks with a stick, knocking him down. Raymond then threw Quillen to the ground and struck him in the face several times. Harry got off the tractor and advanced toward them, swinging an iron bar. Raymond walked away. Quillen got up, walked about eight feet to his car, opened the trunk compartment, took out a stotgun and said: ‘ Scatter, I am going to shoot.’ Banks started toward the front of the car, but Quillen shot at him, hitting his right thigh. He fell to the ground badly wounded.
Banks was taken to the Beebe Hospital at Lewes. After admission he was examined by Dr. Tormet, house physician, and by Dr. Trickett, a practicing physician of Lewes. For the first thirty minutes Banks appeared to Dr. Tormet as a man whose life was in danger. Plasma and blood were administered. Dr. Trickett found the patient in a state of shock. He treated the wound, which he described as serious.
Banks rallied under treatment and steadily improved. On December 26th Dr. Trickett consulted Dr. James C. Beebe, Jr. upon the advisability of a skin graft. Dr. Beebe determined that it should be done. He performed the operation on December 29th. A cast was applied from the groin to the knee of the injured leg. After the operation Banks ‘ was doing fine’, but four days later-January 2, 1953-he died suddenly. Dr. Trickett [49 Del. 118] diagnosed the immediate cause of death as ‘ a massive pulmonary embolism’ . This diagnosis was confirmed by the autopsy. Both Dr. Tormet and Dr. Trickett were of opinion that the clot came from the site of the wound.
That the State's evidence fully justified the verdict is not questioned. Indeed, it would have supported a finding of first degree murder.
The case for the defense was (1) that the shooting was committed in self-defense and (2) that the gunshot wound was not the cause of death.
The testimony in support of the claim of self-defense was summarized by the President Judge of the Superior Court as follows:
‘ The defendant contends that on December 8, 1952, at about five o'clock in the afternoon he was told by his son that employees of the deceased were plowing in the defendant's field; that he and his son decided to go and plow as much of the deceased's lands as they plowed of the defendant's field; that his son, Harry, took his tractor and plows to the field; that he, the defendant, drove there in his car after putting his shotgun and three shells in the trunk of the car; that he parked his car on his side of the
division line about 15 yards from the county road, got out and walked over to count the number of rows which the Banks people had plowed on his lands; that as he went back toward his car, the deceased, his son and his son-in-law came near him; that the defendant and the deceased had some conversation during which the defendant said, ‘ I came down here to die on my own land,’ and did not say, ‘ I came here to kill or be killed; ’ that he, the defendant, continued to walk toward his car, followed by the three persons named, and when he came [49 Del. 119] near the car they threw him to the ground with Raymond Banks, Jr., on top of him, James Kelly standing on one hand and Raymond Banks, Sr., standing on the other hand; that while they were in this position Raymond Banks, Jr., repeatedly struck him in the face and chest.
‘ The defendant denies hitting the deceased with a stick, but says that the walking stick which he had with him in the beginning was snatched away from him by Raymond Banks, Jr., before he was thrown to the ground.
‘ The defendant further contends that these people continued their attack upon him until his son Harry came up with a wrench, whereupon they let him up; that after he got up he was somewhat dazed, but after coming to his senses saw that Raymond Banks, Jr., was standing on the front bumper of the defendant's car with a gun or revolver in his hand; that Raymond Banks, Sr., was leaning on the left front fender talking to his son; that the defendant then walked about three yards to the trunk of his car, unlocked it and loaded his shotgun; that he then stepped over to his left with the gun in his hands, looked up and saw that Raymond Banks, Jr., was pointing his revolver at him; that he then thought the deceased was telling his son to shoot him; that the defendant then said, ‘ Get moving’, and when they did not move, he shot his gun at the deceased, intending to hit him in the foot or ankle; that almost at the same time as this shot, Raymond Banks, Jr., fired his revolver twice. The defendant says he shot at Raymond Banks, Sr., instead of the son because the only visible part of the son's body was the upper part, the shooting of which would have been fatal, whereas he thought by wounding the father in the ankle or foot he could thereby stop the fracas.'
We pause to observe that from the defense itself it appears that the attack upon Quillen had ceased; that he had time to walk to his car, open it, and take out and load his shotgun; and that he then fired, not at the source of danger, but upon an unarmed man.
[49 Del. 120] In support of the contention that the gunshot wound did not cause death, the defense called three physicians. They all expressed the opinion that the wound was one not (or ‘ probably not’ ) likely to endanger life, and that the skin-graft operation ‘ could be’ an independent cause of
death. Dr. Crane thought it more reasonable to relate the clot to the skin-graft operation. None of them suggested that the skin-graft operation was improper procedure, or that there had been any maltreatment of the wound.
We turn now to the questions raised by this appeal and consider first the errors assigned to the court's charge to the jury.
1. The principal attack on the Court's charge is directed to those portions of the charge dealing with the question of the burden of proof. The following excerpts from the charge sufficiently show its tenor:
With respect to the presumption of malice the Court charged as follows:
‘ Malice is implied by law from every deliberate and cruel act committed by one person against another, no matter how sudden such act may be, for the law considers that he who does a cruel act voluntarily does it maliciously; and whenever such an act from which death ensues is proven by the prosecution unaccompanied by circumstances of justification, excuse or mitigation, the law presumes that the homicide was committed with malice and it is, therefore, incumbent ...