Embrey v. State

The conviction is for the offense of murder; punishment fixed at confinement in the penitentiary for a period of ten years.

The deceased was killed at a church about a mile from town. He received a stab wound in the stomach. The knife used had a blade about three and three-quarters inches in length; and there was testimony to the effect that it was a deadly weapon.

A doctor testified that he was called and went immediately to the scene of the homicide, but that the deceased had died before he reached him. In the opinion of the doctor, he bled to death. The doctor did not probe the wound and could not say whether an artery was severed, though he would judge that if the man lived for an hour or an hour and a half after he was stabbed that the artery was not punctured, but that if he died within forty-five minutes, the contrary would be true. The doctor, in testifying further, used this language:

"If the man died within forty-five minutes it would indicate to my mind as a physician that he was cut very severely. In fact if I had been there I could hardly have moved him to the hospital and got ready to operate in that length of time. There would have been nothing to have been done except open the abdomen and tied the blood vessel that was bleeding. It would have been perfectly all right to have operated on him with a knife if you did not have anything better to operate with if you knew the man was bleeding to death, even if you had to do it with a pocket knife to save the negro. That would be what is termed ``first aid.' If you had taken the negro over to the hospital and done some sterilizing and fixed up the operating room, the negro would have been dead if he just lived forty-five minutes after he was cut. Evidently there was some blood vessel punctured that caused the loss of blood from which he died. I consider that a fatal wound under the circumstances."

There was proof that the death occurred within three-quarters of an hour after the wound was inflicted.

Appellant raised the issues of self-defense. The State's testimony was such as to show an absence of justification.

The only legal question presented is that in which appellant complains of the refusal of the court to instruct the jury that if the death of the deceased was due to a lack of proper medical treatment and that death would not have resulted from the wound sustained by him if he had received competent medical aid within a reasonable time thereafter, the offense should be reduced to an aggravated assault. The State contends that the facts are not sufficient to require the submission of this issue, and we regard this contention as sound. See Wood v. State, 31 Tex. Crim. 572; Smith v. State, 33 Tex.Crim. Rep.; Lahue v. State,51 Tex. Crim. 166; Vernon's Tex.Crim. Stat., Vol. 1, Sec. 1082; Francis v. State, 75 Tex.Crim. Rep., 170 S.W. Rep. 779. That the injury inflicted by appellant caused the death of deceased seems not open to question. The mere fact that a surgeon was not at hand to render immediate aid cannot be regarded as a supervening cause. The reasoning in the cases to which reference is made seems conclusive against appellant's theory.

The judgment is affirmed.

Affirmed.

ON REHEARING. June 13, 1923.