Ware v. State

55 S.W. 342, 41 Tex. Crim. 415, 1900 Tex. Crim. App. LEXIS 10

Opinions

DAVID SOM, Presiding Judge.

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 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 hall passed within the thickness of a sheet of writing paper of the spinal cord, hut did not produce paralysis. That some days subsequent to the shooting he carried deceased to the office of Dr. McLain, and there had the hall 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, 53 Vt., 560; Jordan v. State, 79 Ala., 9; State v. Scates, 50 N. C., 420. So, our statute, recognizing this principle, will relieve the party inflicting the injury, if the injured party dies on account of the improper treatment, etc., of some other person. And this rule seems to apply in eases of this character, under this statute, unless the injury inflicted by the first party is necessarily fatal. So it seems to be clear, under this statute, if the destruction of life was not completed by the act, agency, procurement, or omission of appellant, but was brought about by the gross neglect or improper treatment of some other person, that defendant would not be responsible for the death; hence could not be punished for any grade of homicide. The charge in question instructs the jury that, if defendant willfully failed to call aid, he would be deemed as guilty as if the injury was one which would inevitably lead to death. If this proposition is applicable to this case, then it would make no difference, if the doctor or some third person brought about the homicide, for defendant would still be guilty, although the physician or some other party may have actually killed deceased. If this is the effect to be given this section of the statute, then such failure must be willful,—that is, with legal malice and evil intent,—and such willful failure to call aid must be to bring about the death of the injured party by reason of such failure.” The mere omission to call aid, without the element of legal malice or evil intent, would not satisfy the demands of the statute. In no event could appellant be held responsible under this law, unless there was a willful failure and neglect to call aid to the man whom he had injured. Now, suppose the jury should have believed appellant willfully failed and neglected to call aid, but that death was produced, not from this source, but by reason of the act of the third party; would it be contended that appellant could be incarcerated in the penitentiary for the homicide? We do not believe the statute bears such a construction, or was intended to do so. But, even if it did, then the evidence must be clear that his failure or neglect was willful. Now, suppose that, by reason of his willful failure to' call aid, he should be deemed guilty of homicide; of what grade should he be convicted? -Would he stand in relation to the homicide as if death had resulted accidentally, although a third party may have intervened and killed him ? Suppose the party inflicting the injury should do so in a clear case of self-defense, and failed to call aid, and the injured party died; then of what offense would he be guilty? Would he be responsible for. criminal homicide if, under those circumstances, he failed to call aid? Suppose the jury found, as matter of fact, that defendant did not produce the death, but the probing of the wound did, but did find that appellant willfully failed to call assistance; would the conviction be authorized alone because of such willful failure to call aid? In other words, could the failure to call aid be substituted for guilt, under facts necessary to constitute the offense? Suppose, as testified by himself, the shooting was accidental, and he did not call aid; would he be equally guilty as if he had purposely shot? Having failed to call aid, would that make him guilty if he otherwise was justified in firing, under the law of self-defense? We do not understand such to be the law under this statute. If appellant was justified in shooting, the law exonerated him from that criminality, and it would make' no difference whether he called aid or not. His failure in this respect would not abrogate his right of self-defense, nor impair his right to have that issue fairly considered by the jury. So, we are of opinion that this was a direct infringement upon the issue submitted to the jury as to the fact that the death may have been produced by the neglect and improper treatment of others than the defendant subsequent to the shooting. If the accused died from the overt act of parties subsequent to the killing, without the concurrence or aid or concert of appellant, then the mere omission, willful or otherwise, of appellant to call aid, would not make him responsible for the death. He is charged by our laws for what he himself does and its legitimate results. If appellant had illegally shot deceased, or inflicted upon him an injury that might not have been fatal, and yet, of his malice and evil purpose and intent, had failed to call aid, to the end that the party should die, then the killing might be imputed to him; but, in any event, that failure to call aid must be willful,—that is, with legal malice and evil intent. In this instance, the party had attention of friends, relatives, and physicians at once, and appellant was placed in jail, where it was heyond his power to render aid. So, from any standpoint, this charge was not only not called for by the facts and the issues of the case, but it was trying the case upon false issues, and justified the conviction of appellant in derogation of the very statute itself, and was a limitation not authorized by the statute upon that phase of the case with reference to the death on account of improper treatment, as well as that of self-defense and accidental shooting.

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 thiclmess 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.