Hurt, Judge.
The appellant in this case was convicted of murder in the second degree. A reversal of the judgment is sought on three grounds:
1. Error in the admission of certain evidence.
2. Defects in the charge of the court in two particulars.
8. Error in refusing charges requested by the defendant.
First ground: The witness Cummings, M. D., stated that he believed that the wound in the temple, and not that inflicted by the trephining operation, killed the deceased. He was then asked by the State’s counsel if this conclusion was concurred in by the other physicians present, viz: Taylor, Wooten, Given, Johnson and Gasser. To this question the defendant objected, because the desired evidence was hearsay. The objection was overruled, and the witness answered that the opinion which he had given as to the cause of the death was concurred in and agreed to by the other physicians before named at the time of the post mortem examination.
We are of the opinion that the objection of the defendant should have been sustained. This evidence was clearly hearsay, and not admissible. But, as all of these physicians were ex[622]*622amined as witnesses, and testified that, in their opinion, the wound in the temple, and not the trephining operation, caused the death of the deceased, certainly no injury appears to have been done the defendant by its introduction.
Second: Error in the charge in the first particular, viz: that in the ninth subdivision of the charge implied malice is explained as follows: “Implied malice is an inference or conclusion of law upon certain facts found by the jury. Thus the law implies malice from the unlawful killing of a human being, unless the circumstances make it evident that the killing was either justifiable, or, if not justifiable, was so mitigated as to reduce the offense below murder in the second degree.”
The proposition contained in this charge is simply this: That when an unlawful killing is shown, the homicide is presumed by law to be upon malice, and in order to meet and overcome this legal presumption, the evidence—circumstances—must make it evident that the killing was justifiable, or so mitigated as to reduce the offense below murder in the second degree. The appellant objected at the time to this charge. Is it obnoxious to the objection urged to it in the appellant’s brief ? Does this charge shift the burden of proof ? We think not. Does it infringe the doctrine of reasonable doubt F We are of the opinion that it does, and this is so, and is susceptible of the clearest demonstration.
Let us illustrate: A is charged, and is on trial for the murder of B. The State proved that A unlawfully killed B, and here closed. A adduces evidence and circumstances tending to justify or reduce the homicide below murder. Must his justification be evident ? Or must the evidence and circumstances render evident the fact that the homicide was not upon malice, but was manslaughter or negligent homicide? Suppose that neither justification, manslaughter, nor negligent homicide is by the evidence made evident; but suppose the evidence adduced by the State or the defendant which tends to support justification, manslaughter or negligent homicide is sufficient to raise a reasonable doubt of the existence of malice, sufficient to warrant the jury in calling in question this legal presumption. Should the jury find malice and convict of murder? Evidently they should not. A preponderance of evidence in support of circumstances which tend to justify or reduce is not required, the correct proposition being that the State must prove malice, and that if there be a reasonable doubt of its existence, either from [623]*623the evidence or from any evidence, whether adduced by the State or by the defetidant, he cannot be legally convicted of homicide upon malice.
Let us view this subject in another light. An indictment for murder charges at least three distinct offenses; while it charges others, three will suffice for the present purpose, to wit, murder in the first degree, murder in the second degree, and manslaughter. Now, the defendant is notified and called upon to answer each of these offenses. And the State, under these charges, can and must prove one of these charges, beyond a reasonable doubt, to be entitled to a conviction. These charges, or one of them, viz, murder in the first degree, murder in the second degree, and manslaughter, though contained in the same indictment, and though the trial may be upon all at the same time, must be established by the same character of proof—proved in the same manner—as if the trial was upon an indictment which charged but one. And in order to convict of the highest, viz, murder in the first degree, the burden is upon the State to show that the homicide was committed under such circumstances as to constitute murder of the first degree. And so with murder of the second degree; proof must be made that the killing was upon malice, and this must be shown beyond a reasonable doubt. Just what facts will make such proof we are not now discussing.
To entitle the State to a verdict of murder in the second degree, she must prove that the defendant took the life of the deceased, and that the homicide was prompted by a wicked and depraved heart, void of social duty and fatally bent on mischief, that is, by malice. These facts are established by proof of the existence of facts and by proof of the absence of facts.
Again let us illustrate: A is upun trial for the murder of B, The State finds that A shot and killed B. This would.be a very remarkable case if the evidence were to stop here—such a case as will never arise if prosecuted with the slightest attention, and hence we will not discuss such a case. But suppose that a witness were to swear that he saw B, standing on the street, and that A drew his pistol, and while B was standing on the street, A shot and killed him; and here the evidence closed. This being the case, all of the case, very evidently A would be guilty of homicide upon malice, for he who would shoot down a human being under these circumstances, certainly would be prompted by a wicked and depraved heart, a heart void of social duty and fatally bent upon mischief. But suppose B had been breathing [624]*624out deadly threats against A, of which he had been informed, and that just before he shot, B did some act showing an intent to execute his threats? Here we find an issue for the jury, Viz: was the homicide upon malice or in self-defense? and if there should be a reasonable doubt of the malice, A should be given the benefit of this doubt and acquitted of homicide upon malice. We could illustrate with reference to manslaughter and negligent homicide, in fact, to all offenses embraced in murder, but deem the above sufficient.
We are of the opinion that the charge was erroneous, and, as it was excepted to at the time, we are also of the opinion that it contained such error as requires the reversal of the judgment.
But it is urged that in Sharp v. The State, 6 Texas Court of Appeals, 650, this precise charge was, by the court, held sufficient.
Free access — add to your briefcase to read the full text and ask questions with AI
Hurt, Judge.
The appellant in this case was convicted of murder in the second degree. A reversal of the judgment is sought on three grounds:
1. Error in the admission of certain evidence.
2. Defects in the charge of the court in two particulars.
8. Error in refusing charges requested by the defendant.
First ground: The witness Cummings, M. D., stated that he believed that the wound in the temple, and not that inflicted by the trephining operation, killed the deceased. He was then asked by the State’s counsel if this conclusion was concurred in by the other physicians present, viz: Taylor, Wooten, Given, Johnson and Gasser. To this question the defendant objected, because the desired evidence was hearsay. The objection was overruled, and the witness answered that the opinion which he had given as to the cause of the death was concurred in and agreed to by the other physicians before named at the time of the post mortem examination.
We are of the opinion that the objection of the defendant should have been sustained. This evidence was clearly hearsay, and not admissible. But, as all of these physicians were ex[622]*622amined as witnesses, and testified that, in their opinion, the wound in the temple, and not the trephining operation, caused the death of the deceased, certainly no injury appears to have been done the defendant by its introduction.
Second: Error in the charge in the first particular, viz: that in the ninth subdivision of the charge implied malice is explained as follows: “Implied malice is an inference or conclusion of law upon certain facts found by the jury. Thus the law implies malice from the unlawful killing of a human being, unless the circumstances make it evident that the killing was either justifiable, or, if not justifiable, was so mitigated as to reduce the offense below murder in the second degree.”
The proposition contained in this charge is simply this: That when an unlawful killing is shown, the homicide is presumed by law to be upon malice, and in order to meet and overcome this legal presumption, the evidence—circumstances—must make it evident that the killing was justifiable, or so mitigated as to reduce the offense below murder in the second degree. The appellant objected at the time to this charge. Is it obnoxious to the objection urged to it in the appellant’s brief ? Does this charge shift the burden of proof ? We think not. Does it infringe the doctrine of reasonable doubt F We are of the opinion that it does, and this is so, and is susceptible of the clearest demonstration.
Let us illustrate: A is charged, and is on trial for the murder of B. The State proved that A unlawfully killed B, and here closed. A adduces evidence and circumstances tending to justify or reduce the homicide below murder. Must his justification be evident ? Or must the evidence and circumstances render evident the fact that the homicide was not upon malice, but was manslaughter or negligent homicide? Suppose that neither justification, manslaughter, nor negligent homicide is by the evidence made evident; but suppose the evidence adduced by the State or the defendant which tends to support justification, manslaughter or negligent homicide is sufficient to raise a reasonable doubt of the existence of malice, sufficient to warrant the jury in calling in question this legal presumption. Should the jury find malice and convict of murder? Evidently they should not. A preponderance of evidence in support of circumstances which tend to justify or reduce is not required, the correct proposition being that the State must prove malice, and that if there be a reasonable doubt of its existence, either from [623]*623the evidence or from any evidence, whether adduced by the State or by the defetidant, he cannot be legally convicted of homicide upon malice.
Let us view this subject in another light. An indictment for murder charges at least three distinct offenses; while it charges others, three will suffice for the present purpose, to wit, murder in the first degree, murder in the second degree, and manslaughter. Now, the defendant is notified and called upon to answer each of these offenses. And the State, under these charges, can and must prove one of these charges, beyond a reasonable doubt, to be entitled to a conviction. These charges, or one of them, viz, murder in the first degree, murder in the second degree, and manslaughter, though contained in the same indictment, and though the trial may be upon all at the same time, must be established by the same character of proof—proved in the same manner—as if the trial was upon an indictment which charged but one. And in order to convict of the highest, viz, murder in the first degree, the burden is upon the State to show that the homicide was committed under such circumstances as to constitute murder of the first degree. And so with murder of the second degree; proof must be made that the killing was upon malice, and this must be shown beyond a reasonable doubt. Just what facts will make such proof we are not now discussing.
To entitle the State to a verdict of murder in the second degree, she must prove that the defendant took the life of the deceased, and that the homicide was prompted by a wicked and depraved heart, void of social duty and fatally bent on mischief, that is, by malice. These facts are established by proof of the existence of facts and by proof of the absence of facts.
Again let us illustrate: A is upun trial for the murder of B, The State finds that A shot and killed B. This would.be a very remarkable case if the evidence were to stop here—such a case as will never arise if prosecuted with the slightest attention, and hence we will not discuss such a case. But suppose that a witness were to swear that he saw B, standing on the street, and that A drew his pistol, and while B was standing on the street, A shot and killed him; and here the evidence closed. This being the case, all of the case, very evidently A would be guilty of homicide upon malice, for he who would shoot down a human being under these circumstances, certainly would be prompted by a wicked and depraved heart, a heart void of social duty and fatally bent upon mischief. But suppose B had been breathing [624]*624out deadly threats against A, of which he had been informed, and that just before he shot, B did some act showing an intent to execute his threats? Here we find an issue for the jury, Viz: was the homicide upon malice or in self-defense? and if there should be a reasonable doubt of the malice, A should be given the benefit of this doubt and acquitted of homicide upon malice. We could illustrate with reference to manslaughter and negligent homicide, in fact, to all offenses embraced in murder, but deem the above sufficient.
We are of the opinion that the charge was erroneous, and, as it was excepted to at the time, we are also of the opinion that it contained such error as requires the reversal of the judgment.
But it is urged that in Sharp v. The State, 6 Texas Court of Appeals, 650, this precise charge was, by the court, held sufficient. In this case it does not appear that the attention of this court was called to the word “ evident.” In regard to this charge the learned judge (Winkler) says that it sufficiently informed the jury as to what facts and circumstances would justify them in descending from the first degree and convicting of murder in the second degree, if, indeed, the defendant was entitled to a charge on that grade of offense under the proofs adduced. But if it was the intention of this court to hold that the word “ evident” was properly used, and that in fact justification, or the reduction of the offense to manslaughter, etc., must be made evident by the evidence, then that case is overruled.
But again it is urged by the State that as the court charged the jury that if they had a reasonable doubt of the defendant’s guilt of murder of the second degree they must acquit, that therefore the error above noticed was rendered harmless. These charges are in direct conflict, and as defendant objected at the time, and’ as we cannot say that the jury was not misled by the erroneous charge, we feel constrained to reverse the judgment.
The next ground of complaint to the charge is in reference to the twelfth and thirteenth subdivisions of the charge. On the nineteenth day of January, 1883, the deceased was stabbed with a, .pocket knife in the left temple. When struck with the knife the deceased fell to the ground, and, upon examination, was found in a comatose state, in which condition he remained up to his death, which was on the twenty-fifth day of January, 1883. On -the twentieth day of January the surgeons performed the trephining operation, taking from the back part of the head two pieces of skull.
[625]*625The autopsy disclosed that the knife had entered through the skull and penetrated the brain about two and a half inches, in an inward, backward and slightly upward direction. Along the track of this wound in the temple it was suppurated. triangular piece of skull, size and shape about one inch from the base to the apex of the triangle, was driven into the brain. There is no reason for doubt that the wound inflicted in the temple by the defendant produced the death of the deceased; all of the surgeons agree to this. Two of the surgeons, however, on the twentieth of January, mistaking an irregularity, a congenital malformation of the skull, for a fracturé, operated by trephining, and two pieces of skull were taken from the back part of the head. To the wound in the temple nothing whatever was done except to bandage and keep it cool, when by proper treatment the piece of bone could have been removed, and a chance given the deceased to recover. That there is evidence in this record tending strongly to show that there was gross negligence and manifestly improper treatment of the deceased cannot be denied and must be conceded.
Under the above facts—all of the facts relating to the different wounds, their character and the negligence and their improper treatment—what instructions should be given to the jury by the trial judge? The appellant complains of the charges of the court touching this matter. What, therefore, did his honor below charge?
“3. Homicide is the destruction of the life of a human being by the act, agency, procurement or culpable omission of another.
“4. The destruction of life must be complete by such act, agency, procurement or omission; but, although the injury which caused death might not under other circumstances have proved fatal, yet if such injury be the cause of death, without its appearing that there has been any gross neglect or manifestly improper treatment of the person injured, it is homicide.
“ 5. The neglect or improper treatment referred to has reference to the acts of some person other than he who inflicts the first injury, as the physician, nurse or other attendant.”
“ 12. If the jury find from the testimony that the defendant, at the time and place as alleged in the indictment, with a knife did inflict the wound in the head of the said Joseph Henderson, as charged, and they further find from the testimony that there has been gross neglect or manifestly improper treatment of said [626]*626Henderson, by any one or more of the physicians attending him, between the infliction of the wound and his death, which improper treatment or neglect, if any, caused the death of - said Henderson, then the jury cannot find the defendant guilty of taking the life of Henderson. And if the jury so find from the testimony, then they will find the defendant not guilty. If the wound (if shown by the testimony) inflicted by the defendant upon Henderson was not in itself mortal, and Henderson died in consequence of improper treatment by his physicians, and not of the wound, then the jury will find the defendant not guilty.
“13. If the testimony should show that the wound, as alleged, was inflicted by the defendant upon the head of the deceased, and that on a subsequent day, and before the death of said Henderson, the physicians, in mistake as to the nature of the injury, operated upon the back part of the head of the deceased, and in so operating inflicted injuries to the head and brain of the deceased, and that the death of the said Henderson occurred on January 24, from the joint effect of said wounds inflicted by defendant and by the physicians, then the jury must be satisfied from the testimony that the wound inflicted by the defendant was clearly a sufficient cause of the death without the concurrence of that by the physicians, and if the jury so find they will find the defendant guilty. But if the death of Henderson is shown to have been caused by the joint effects of the wound inflicted by the defendant and that inflicted by the physicians, and it should not be made clearly and satisfactorily to appear that the wound inflicted by defendant was sufficiently a cause of the death of Henderson, then the jury should acquit the defendant.”
Do these charges of the learned judge inform the jury correctly of the rule by which they are to be governed in determining whether or not defendant destroyed the life of the deceased, Henderson? We are of the opinion, keeping the facts of the case upon this point before us, and as directly applicable thereto, these charges, taken together, contain a full, clear and concise statement of the law, and that there is no error apparent to us.
But suppose, it may be asked, that there was gross negligence or manifestly improper treatment by the attending surgeons, the wound not being necessarily mortal, can the defendant be convicted of the homicide? How, before proceeding to answer this question, we desire to make these observations:
1. A wound is mortal when beyond the skill of surgery. It [627]*627is mortal, because death is inevitable from the nature of the wound.
3. A wound is mortal unless relieved by surgery. Now, if A inflicts a wound upon B from which there is no chance of recovery, aided by the most skillful surgeon, and B dies, A is guilty of the destruction of B’s life. But suppose that A inflicts a wound upon B from which he might be relieved by rational surgery, but, unless aid is given, B must, from the very nature of the wound, die, and aid not being given, B dies, will any rational mind question the fact that A destroyed B’s life? The condition in which A placed B is that which must lead to death, and that which did lead to death. Now, can it rationally be contended that, as B, by proper treatment, might have been relieved, therefore A did not destroy B’s life—that A did not kill B? Who will assert such a proposition? If, therefore, A did kill B, must he escape because of the gross improper treatment of the surgeons, when in fact he destroyed the life of his fellow man? The plainest principles of justice revolt at such a conclusion. On the other hand, suppose that the wound or injury inflicted, in conjunction with the improper treatment, produced the death, the wound not being necessarily mortal, should the defendant be held responsible for the homicide? Clearly not, nor is he so held in the charge of the court, the jury being told in the charge, under this state of case, to acquit.
Again it is urged, as there is evidence tending to show that the wounds inflicted by the surgeons weakened the patient and lessened his vitality, that although the wound inflicted by defendant destroyed the life of the deceased, that being aided in this manner by the wounds inflicted by the trephining operation, the defendant cannot be held responsible for the homicide. This proposition is not supported to its full extent by evidence. Doctor Wooten swears that the patient was weakened, and that his vitality was lessened, but he is very clear and positive that the patient died of the wound given by the defendant. And not only so, the evidence is conclusive that of this wound death was inevitable, unless relieved by surgery, and, to produce death, the wounds inflicted by the surgeons in the trephining operation would have required several days time.
We must not lose sight of the plain and practical question, which is: Did defendant, unaided, destroy the life of the deceased Henderson? If he did, he should be held responsible for the homicide. If not, there being evidence of gross negligence, [628]*628and manifestly improper treatment by the surgeons, he should not. This question, we think, in all phases was correctly submitted to the jury by the very clear and concise charge of the learned judge who tried this case. It follows that, if the charge of the court was correct, full and complete upon this subject, there was no error in refusing the charges requested by the defendant.
Other objections to the charge have been considered by us, but we do not think them well taken.
For the error in the charge of the court relating to implied malice, or murder in the second degree, the judgment is reversed and the cause remanded.