DocketNumber: No. 1972.
Citation Numbers: 55 S.W. 342, 41 Tex. Crim. 415, 1900 Tex. Crim. App. LEXIS 10
Judges: Som, Henderson
Filed Date: 1/24/1900
Status: Precedential
Modified Date: 10/19/2024
Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for two years.
He assigns error on that portion of the court's charge which instructs the jury that, "if the person inflicting the injury which makes it necessary to call aid in preserving the life of the person injured shall willfully fail or neglect to call such aid, he shall be deemed equally guilty as if the injury were one which would inevitably lead to death." This is an excerpt from article 653, Penal Code. Several objections are urged to said charge. The issues submitted by the court include murder in the first and second degrees, manslaughter, and assault with intent to murder. The evidence pertaining to these issues is in substance as follows: The deceased came into the saloon where appellant was bartender, and went into the rear portion of the building, where there was a restaurant. The porter of the saloon was in there eating his supper. Deceased either requested or demanded of the porter a division of his beefsteak. The porter ran into the saloon where appellant was behind the bar, followed by deceased, who chased him around behind the bar. Deceased was ordered out from behind the bar by appellant. Some angry words ensued, and one theory of the testimony is that deceased refused to go, and was compelled by appellant to do so. Deceased went into an adjoining room and asked for a knife. About the time he entered the room and requested the knife, appellant said he did not permit any black son of a bitch to come behind his bar. Deceased failing to get the knife, returned in front of the bar, and asked appellant what was the matter "with his being a white son of a bitch." Here appellant seized a small bottle, and either struck deceased or threw it at him, there being a conflict in the testimony on this point. Deceased also seized a stone mug, and threw it at appellant. There is some conflict at this point as to whether appellant or deceased threw first. Deceased immediately seized a stone mug in each hand, and, while he was in the act of throwing, appellant suddenly seized a pistol from under the counter and fired. The ball entered deceased's face about the mouth, and lodged in the neck bone. Appellant testified that the shooting *Page 417 was accidental; that he had no intention of inflicting any wound upon deceased, and only fired to frighten him from the saloon. Deceased lived ten days or longer. Immediately after the shooting the friends and relatives of deceased carried him home, and appellant was at once carried to jail. Dr. Hengst, the attending physician, was with deceased in a few moments after he was shot. The shooting occurred on Saturday night. Deceased was seen walking about the streets of Waco about a week after the difficulty, according to the testimony of two witnesses. He was apparently getting along very well, and so stated. Dr. Hengst testified that the ball passed within the thickness of a sheet of writing paper of the spinal cord, but did not produce paralysis. That some days subsequent to the shooting he carried deceased to the office of Dr. McLain, and there had the ball located by the X-ray process, and then probed the wound, with the view of extracting it. After death the ball showed to have been mashed by the probing instrument. There was a failure to dislodge the ball, and it remained imbedded in the neck bone. In about three or four days, or less time, after the wound was probed, deceased died from paralysis.
The court submitted the issue as to improper treatment, gross neglect, etc., by the physicians, and it was in this connection that the charge excepted to was given. We are of opinion there was no evidence calling for a charge in regard to a willful failure to call assistance. Taylor v. State, ante, p. 148. Under this testimony, and in the manner in which the charge was given, it was hurtful, and may have led to the conviction of appellant in the face of the evidence. The court also instructed the jury in regard to accidental shooting, and charged the law of self-defense, authorizing the jury to acquit if they believed either theory. He also submitted the issue of assault with intent to murder, and failed to charge the law of aggravated assault. Under the statute given in charge by the court, if deceased came to his death by the manifest improper treatment or neglect of some other person than the accused, he would be entitled to an acquittal of any degree of culpable homicide. We understand the law to be, under ordinary circumstances, if a person is struck by one party, but death is caused by an independent act of another, without concert with the first person, the second, and not the first, person will be held responsible for the death. McClain, Crim. Law, p. 261, sec. 292, and for collation of authorities, see notes 2, 3, and 4; State v. Wood,
It is also contended that the evidence does not support the conviction. We pretermit a discussion of this question, but would suggest that the evidence could be made much clearer and plainer with reference to the treatment of the wounded man, especially in regard to the matter of probing for the ball. The testimony of Dr. Hengst shows a rather remarkable statement of facts in regard to the course of the ball and his subsequent action in probing for it. If it is a fact that the course of the ball was within the thickness of a sheet of writing paper of the spinal cord, the probing of the wound for the ball, would, of necessity, be a very dangerous operation, and it seems to have resulted fatally; for, if the testimony of the doctor himself, as well as the witnesses who saw deceased walking about the streets of Waco, is to be credited, he seems to have been getting along very well until after the probing operation, and that then his end came rapidly. It is testified by the physicians that, if the ball had touched the spinal cord, instant paralysis would have ensued below the point of contact. It did not ensue until after the wound was probed. We, however, do not pass upon that question. The evidence may be made clearer upon another trial. Because of the error of the court in regard to giving the charge above discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.