The Charlotte News

Friday, April 18, 1941


Site Ed. Note: The first piece carries the assumption, correctly, that, on the facts as presented, a person who dies during a fight, even if "accidentally" in the sense that his lights weren't literally punched out or some instrument used to inflict a lethal blow, but indirectly, as here, his head hit the sidewalk, is nevertheless the victim of homicide. This incident was clearly not an accident, unless there was some supervening cause, apart from the fight, which precipitated the fall, and which is completely apart from the nexus of causation educed by the fight. For instance, the men are fighting, and a bolt of lightning suddenly strikes a nearby limb which then falls on one of the combatants, knocking him to the sidewalk where he strikes his head fatally. That is clearly an accidental death as the chain of causation is broken by some other cause, even though the combatants might not have been where they were but for the occurrence of the fight. The proximate causation is broken by the lightning bolt and tree limb falling.

The question in the law, then, is one of causation: Is the death a proximate cause of the force being employed, and even though engaged in mutual combat?

Once ruled a homicide and not an "accident", then the question becomes what type of homicide, negligent or intentional, or one where self-defense or defense of others or some other defense or justification under the law eliminates legal culpability.

And that latter question is one which the courts, as the editorial points out, must determine, not a coroner's jury. The coroner rules only on the threshold question of accident or homicide. For example, an accidental death might well be determined without great question under the law where the evidence is uncontroverted, both testimonially and by the physical evidence at the scene, that a person was following another down a steep cliff, slipped on a wet rock on a drizzly day, grabbing onto the other in front of him to break his fall, causing both to tumble down the cliff, during which the one onto whom the other grabbed hits his head on a rock, dies. Provided there is no question under the evidence of intent to slip and grab to make the death look an accident, then such a death might very well be ruled an accident by a coroner and closed, subject of course to being reopened by the district attorney should there surface a question later--the same person slips and falls and grabs another a year later on a drizzly day and that person also hits his head on a rock, for instance, or it turns out that the person slipping had taken out a substantial life insurance policy on the decedent, with himself named as sole beneficiary, just a month before the apparent accident, and it was he who suggested the ill-fated cliff hike and on a day where rain was predicted in the forecast.

And, of course, it wouldn't matter if the new evidence tending to show intent rather than accident surfaced years later, as there is no statute of limitations on murder. Watch where you step on the steep cliffs when behind another, especially on drizzly days.

As to proximate or legal causation under the law, the concept depends not only on actual causation, or cause in fact, the classic "but for" test in the law--that is but for the physical agency set in motion by another the death would not have occurred--, but also whether under the law the causal act was volitional and deliberate and also within a sufficient nexus to the resulting death to be legally recognized as the cause. The case, for instance, of the wildly ricocheting bullet which misfires over a berm on a gun range, hits several obstacles and comes to rest in someone's head--based on actual cases--is clearly an unintentional, non-negligent homicide, provided that the berm itself was of proper height under existing regulations and the gun range was not therefore liable, the regulations of the height of the berm, based on expert opinion, were proper and the local authority regulating such matters not therefore liable, and that the shooter was operating within the established rules of the gun range and laws regulating it at the time, was not using a prohibited high-powered weapon or prohibited armor-piercing bullets, for instance, and thus the shooter not liable. In any one of the latter scenarios of breaking of the law, then either the gun range or the shooter or both might be held to answer for a negligent homicide, usually involuntary manslaughter, provided the law broken was only a misdemeanor. But if the transgression of the law is a felony, the malice necessary for murder might then be afforded under the felony-murder rule, the malice imputed from the felonious violation of the law, provided there is a sufficient proximal nexus such that a death was reasonably foreseeable from the action constituting the felony.

A robbery of a store, for instance, where a customer becomes frightened and dies of a heart attack, may very well be charged as felony-murder, provided the state shows proximate cause between the act of the felony and the heart attack, evident circumstantially provided the customer knew the robbery was taking place, and can show that but for the robbery the person would not have had the heart attack at that time. If the person was in a back room, oblivious to the robbery, obviously, there is no proximal or cause-in-fact nexus. If the person's heart attack began before the robbery, and he dies only after the robbery, then the state would have to show that the robbery either delayed aid to the victim or exacerbated an already pre-existing condition. But even if the victim has had a history of heart attacks, that is likely of no moment to afford the robber a defense, for the foreseeability of the risk is the operative factor in determining proximate or legal causation, and the person committing the deliberate or even negligent act is taken to account for the victim as he finds him--the classic case of a blow to the head with foreseeably sufficient force to inflict injury, even if of a minor nature, and that blow resulting in death because of a soft skull of the victim; nevertheless potentially chargeable as murder provided there was no justification for the act in the first instance. Moral: if you plan to rob the Pay 'n' Pack, watch out for those inadvertent heart attacks.

Even the shooting by police of an accomplice during the course of a felony, say a robbery, such as where the suspects are fleeing the robbery scene in a vehicle and the officer is in hot pursuit, opens fire at the tires, the bullet ricochets, accidentally shooting one of the escaping felons in the head, or where the car wrecks and one of the fleeing felons is killed while the other lives, could conceivably result in application of the felony-murder rule to the surviving felon, charging him with murder, the requisite malice imputed from the original felony, robbery. Again, the question is one of causation, both proximate and cause in fact. Moral: if fleeing with the loot sack, stop before the police put one in your buddy's back.

If, however, the fleeing felons reach a place of apparent safety, their hide-out shack, where they are splitting up the booty, and the police arrive a half hour later, and start blasting the place, killing one of them, the other is not going to be charged under the felony-murder rule, provided he has not returned fire at the officers, and thus triggered another felony from which the malice might be imputed, because the nexus between the original felony of robbery and the shootout has been attenuated by the break in time, the hot pursuit no longer present. Moral: if you're lucky enough to reach the shack, don't fire back.

In any event, the piece makes the valid point that it is the coroner's limited duty to decide whether there is reason from the circumstances surrounding the death, that determinable from the medical evidence, to believe some human agency, whether of origins "accidental" or negligent or deliberate, caused the death. If so, it is then the district attorney or grand jury who must make the call whether a case is to be charged on a theory of murder or negligent homicide, manslaughter, or whether it is to be deemed so obviously one of self-defense or otherwise a justifiable homicide that it should not be charged. The close cases generally are charged, of course, and then it is up to a regular jury to determine whether there is sufficient evidence to convict beyond a reasonable doubt and to a moral certainty of a defenseless murder or negligent homicide or a homicide committed in the heat of passion, voluntary manslaughter.

And of course questions of self-defense do not always come equipped with clear facts. In the case below, if there is independent evidence that the dead man was attempting to retreat when he fell and hit his head, as the other man persisted in giving chase in the face of what any reasonable person would have understood as retreat by the other, then self-defense under the law is no longer available, even if the other man began the fight. Even so, whether the mere chase would produce any proximately causal nexus between the chaser and the death of the chased, under these stated circumstances, such that the result would be deemed homicide, is dubious. If, however, the man picked up an iron rod as he gave chase, the case is closer for negligent homicide, debatably even felony-murder, but still, however, dependent on the circumstances as adduced by the testimony of witnesses.

As to the rest of the page, today begins the five-day series of editorials by Raymond Clapper, which we reproduced in full and posted in May, 2001, regarding his reports from Mexico City, with special emphasis on the stance of Mexico vis à vis Germany and the remaining presence of spies in Mexico, though his estimates in this regard, as reported to him, were far lower than reported by historians after the war. There was always, of course, too, in any of this editorialized reporting on the war, and especially regarding spy activities, including on occasion the editorializations on the subject by Cash, some degree of bluff employed, optimistic propaganda in a sense, with the prospect in play that some of the spy network themselves, or their potential recruits among German nationals in the country, or those who might otherwise be sympathetic to their cause and therefore lend aid, might read it and thus become discouraged from participation by the apparent wane of Fifth Column activities.

The first one by Mr. Clapper relates to how the airplane has changed modern life, both for better and worse, the latter in terms of the dramatic immediacy and ease with which warfare may be waged via this flying instrument.

Of course, V-2 rockets, developed under the direction of Wernhar von Braun at Peenemünde, and ultimately to change life even more drastically on the entire planet, were not far away as well, production of which having begun in October, 1942, becoming operational on September 8, 1944. Some 1,050 of these deadly silent killers were hurled into the streets of England between that date and March 27, 1945, and, despite their lack of accuracy, wreaked as much or more havoc than the bombing raids of the initial Blitz of 1940-41.


The Coroner Sets Himself Up As a Criminal Court

The six-week-long murderless spell was broken this week, it was thought at first, by the killing of a Negro. At any rate, the police arrested another Negro on a warrant charging murder.

Yesterday the coroner's jury heard the evidence in the case. Seems that the Negro who was killed had been drinking and had accosted the other with a knife in his hand. During what must have been a struggle his head hit the sidewalk and he died almost instantly.

An accident, the coroner's jury called it. In doing so it flagrantly exceeded the authority of coroner's juries and usurped the function which is expressly reserved to the State's courts of law and trial juries, and to no other agency.

On the face of it, the homicide was justifiable. But who represented the State in diligently making sure that the killing took place as described? The cross-examination of witnesses at the hands of one trained in the law can be a far more enlightening procedure than cross-examination at the hands of one trained in anatomy--i.e., the Coroner.

It has been amply demonstrated in the past that one of the contributing causes of the city's high murder rate is the custom (illegal, we think) of coroners' arrogating to themselves the power to try homicide cases and to bring in acquittals. The duty of a coroner is only to establish whether the deceased came to his end naturally or by his own hand, or by the hand of another, and in that latter case, the court should hear the case.

It's all very well for the City authorities to let themselves believe that this was an "accidental death," and so to enter it up in the records. But in the year's books it will go down as a non-negligent homicide, rather than an accident, the convincing appearance of self-defense notwithstanding.

Good Ground

Precedent Exists for Keeping Reynolds Out of Key Job

It now appears that there is precedent for the Senate's disregarding the seniority rule in the case of Robert Rice Reynolds and his claim to the chairmanship of the Senate Military Affairs Committee.

In 1924 the Senate elevated Cotton Ed Smith to the post of chairman of the Commerce Committee as a result of a split in Republican (then the dominant party) ranks, despite the fact that he was not entitled to it under the seniority rule. And the House, it appears, has twice ignored seniority in filling chairmanships.

That should be quite enough to swing the scale and make up the mind of the Administration--apparently still backing and filling on the issue--to block at any cost the elevation of Reynolds to this key defense post.

Reynolds has announced that he will fight for the job, asserts he is in favor of national defense, says he considers himself preeminently fitted for the position. Nobody else thinks he is fitted for it, unless perchance they think kissing actresses in public, praising Hitler and organizing hate societies constitute qualification.

And the kind of defense he favors is the Lindbergh kind--the isolationist and appeasement kind, the kind that the overwhelming majority of the American people have repudiated.

There has never been an instance in which it was more imperative to the national interest to set aside a dubious rule and block an advancement. The Administration undoubtedly has the power to do it if it really turns on the heat. And if it doesn't it must ultimately bear the fearful responsibility for what this thoroughly irresponsible man may do.

Aid And---

Whatever His Purpose, This Man Greatly Comforts Hitler

The other day Harold A. Ickes boldly denounced Charles A. Lindbergh as a Nazi fellow-traveler. To date Lindbergh has not openly retorted, though he perhaps indirectly did so last night when he claimed he hated to see England fall.

But Honest Harold is a man of somewhat violent judgment, and though it is manifest that Lindbergh's sympathies are with the Nazis, there is no evidence that he is consciously engaged in aiding their purposes. But if he were, then it would be impossible to imagine a better way of going about it than he used in his speech in Chicago last night.

What he said was that the Nazis were irresistible, that England is sure to fall, that the Nazis did not menace us but on the contrary offered us a good chance to do business, and all we had to do to be safe was to cut off aid to Britain, and stay at home and mind our own business.

All this flies in the face of the people really competent to pass on the question, including the State Department, the military high command of the United States, and the corps of the veteran diplomatic and newspaper observers.

In any case, the argument he puts forward is admirably calculated to breed defeatism and dissension among us, to hamstring the policy already settled on by the nation and further Hitler's aim of first dividing and then destroying.

Whether Charles A. Lindbergh has Quisling tendencies or not it doesn't particularly matter. The plain fact of the case is that, whatever his purpose, he is actually worth several million ordinary Fifth Columnists to Adolf Hitler.

Our Choice

We Must Decide Whether England Shall Go Down

It is no accident, of course, that the defeatists are now grabbing the stage to assure us that England is doomed. They hope to capitalize on the fall of Yugoslavia and the threatening fall of Greece to prove their claims.

But the war is not lost. No war is ever lost until either the forces or the morale of one of the conflicting sides is destroyed.

There is no reason to suppose that England's morale is near cracking. But unfortunately there is very great reason to fear that her sea power may be about to break, in the Atlantic.

The time for our own decision is at hand. We must make up our minds to follow through on the Lend-Lease Bill and use our sea and air power to see that the supplies reach England, or we may as well take the Lindbergh course and give up aid-for-Britain altogether. There is no sense in building planes and guns for the bottom of the sea.

We cannot duck that decision. Openly or tacitly we are bound to make it, one way or the other. If we rock along, the war is lost so far as England goes, and we had better begin to get ready to fight alone when Hitler gets ready to take his revenge for what he will not forgive--unless we are prepared to appease all the way and accept his yoke quietly.

It is nonsense to say that the war cannot be won, but it requires that the full resources of the United States shall be brought to bear upon the purpose. And we may as well understand that that almost certainly means shooting. If we cannot accept that, and it is a hard prospect, then we shall have to accept the alternative--which probably means shooting in the end also.

No wish-thinking can change the situation in which we find ourselves. We cannot have our sort of world without being prepared to fight for it. And we are only paralyzing ourselves when we try to think so.

Heroic Call

But Brother Pelley Is Only Wasting His Breath

Mr. William Dudley Pelley has issued a call to the Silver Shirts to aid him in his fight to avoid extradition to North Carolina.

According to The Indianapolis Star, would-be Fuehrer Pelley will have to say in the forthcoming issue of his Roll Call, organ of the Silver Shirts:

Remember they put Hitler in a fortress for ten months for a more serious offense and today he bosses Europe. Will this...injustice to Pelley...bring a wholesale resumption of the Silver Shirts? The coming weeks must tell!

Brother Pelley is no martyr. He is simply a pip-squeak criminal who operated a blue-sky racket at Asheville. He got caught, was properly sentenced to jail for six years, but in a weak moment the judge suspended the sentence upon payment of a thousand dollar fine and promise of good behavior.

A year ago the judge ordered him taken into custody as having plainly violated the terms of the sentence. He fought extradition. The other day a United States Circuit Court ruled against him. He will be brought to North Carolina, we predict, to serve his sentence as he deserves, in forgotten ignominy.

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