Treadwell v. State , 1884 Tex. Crim. App. LEXIS 151 ( 1884 )

White, Presiding Judge.

On the twenty-fourth day of Hov ember, 1875, appellant Treadwell had an altercation and rencounter with one G. R. Honeycut, in which rencounter he shot said Honeycut with a pistol. On the eighth day of the following September, 1876, or nine months and a half after he was shot, Honeycut died. Appellant was indicted for the murder on the twenty-eighth day of October, 1881, nearly six years after the shooting, and over five years from the wounded man’s death. At the trial appellant was found guilty of murder in the second degree, his punishment being assessed at five years’ imprisonment in the penitentiary.

Though the deceased was laid up for some time, and never was entirely well after he was wounded by appellant, yet, in our opinion, the evidence, as presented in this record, not only fails to show that he died of the wound, but, if it shows anything at all with certainty as to his death, shows that death was caused by disease which was not, and perhaps could not, have been produced or occasioned by the wound. Deceased was shot in the abdomen, just below the navel. Doctor Johnson, who saw deceased just after he was shot, and who attended him several weeks after he was shot, says: “The wound was not necessarily a fatal one; at the worst it would only have produced lameness.” Again he says: “I don’t think the wound contributed to the death of the deceased.” If left to itself, we might feel inclined to hesitate about taking Doctor Johnson’s testimony, or, rather, his opinions, as an expert as far from being conclusive, since lie swears he has never heard of “blood poisoning,” and that though he “watched the Garfield case very carefully, it was his opinion that he (Garfield) was professionally murdered.” There is, however, other expert testimony. Doctor Cook testifies that deceased was under his treatment for about a month; that he and Doctor Parsons examined him very carefully, and pronounced his disease “pericarditis,” or dropsy of the heart; that it would require direct injury to the heart to bring about “pericarditis.” “Blood poison is not likely to occur in eight or ten months after a wound was inflicted. I could not tell what caused the pericarditis in this case. I and Doctor Parsons gave deceased a thorough examination, and reached no conclusion as to its cause. Doctor Parsons is a physician <">f very high standing; I know of no better in the State.” He says deceased was brought to him for treatment six months after he received the wound. “Deceased never complained of the wound, but complained all the time of pain in the region of the heart. * * * Pericarditis is usually caused by a direct injury to the heart, and it is sometimes caused by an attack of rheumatism, and various other causes, many, of which are unknown. Deceased was liable to die suddenly at any time. * * * Deceased made no complaint of the wound. I have seen an old wound break again, but I examined the wound in this case a number of times while he was with me, and on the day before he left, and it seemed perfectly healed. The pus usually forms in a very short time after a wound, and if blood poisoning should set up, it would cause death before pericarditis could be produced, if blood poisoning could cause pericarditis at all. I don’t think "blood poisoning could cause pericarditis. * * * If the wound arose and run after he left me, my opinion is that it and pericarditis both produced death together.”

To say the least of it, this evidence leaves it extremely doubtful if the wound even contributed to the death, much less that it caused it. To sustain a charge for murder, the State must in all cases show that there was a homicide. “ Homicide is the destruction of the life of one human being "by the act, agency, procurement or culpable omission of another.” (Penal Code, Art. 546.)

Has a homicide been proven in this case? We do not hesitate ’ to say that it has not been proven with that degree of certainty that we would feel warranted in saying that on account of the proof a citizen should be branded as a murderer and punished as a felon.

The court erred in refusing a new trial, and the judgment is reversed and cause remanded.

Reversed and remanded.

Opinion delivered June 14, 1884.