A majority of the court have agreed to reverse this case on account of an alleged misdirection of the judge in instructing the jury. I do not agree to such disposition of the case, and will assign my reasons for believing it should be affirmed. *Page 420
The homicide occurred in a saloon in the city of Waco, in a casual difficulty between defendant and deceased. According to the theory of the State, the conviction could be maintained for murder in the second degree or manslaughter. According to the theory of defendant, he ought to have been acquitted on the ground of self-defense, or on the ground of accident, as testified by him, or because the death of deceased was not caused by the shot inflicted by defendant, but came about on account of the gross neglect of deceased and his physicians. I do not think there is any doubt that the conviction can be sustained for manslaughter, which was the finding of the jury, unless it be true, as assigned by appellant — "First. That the evidence shows deceased came to his death from exposure on his own behalf; and for the further reason that death resulted from the wound, co-operating with medical treatment, the latter being the immediate and producing cause of the death of deceased, owing to the fact that the physicians in locating the ball lodged in the vertebræ, in probing and trying to extract same, it was caused to press upon the spinal cord, and thereby produced inflammation and paralysis, which caused the death of deceased. Second. The court erred in giving to the jury the following clause of the charge: `And, 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 danger were one which would inevitably lead to death.'"
Now, with reference to the first proposition above stated, I would say: There is absolutely no testimony showing appellant exposed himself in such manner as contributed to his death. No witness says his coming down into the city of Waco, after the infliction of the wound, tended in the least to aggravate the wound, or to bring on any disease, in connection with the wound, which caused his death. In regard to the allegation that, in probing the wound, the spinal cord was pressed on in such manner as to cause his death, the evidence of the attending physician shows the ball was located by the X-ray process, and was found imbedded or lodged in a piece of the vertebræ close to the spinal cord. The space (i.e., the bone intervening between the ball and the spinal cord) was shown to be about the width of a sheet of paper. Death was caused, as stated by this witness, by paralysis produced by pressure on the spinal cord, or by inflammation of the spinal cord, one or the other. This ensued four or five days after the wound was probed and the attempt made to dislodge the ball. Up to the time of the probing process, deceased was not afflicted with paralysis. The witness stated death resulted from the wound inflicted from the pistol shot. Shelton, for defendant, testified that from the testimony of Dr. Hengst, the attending physician, on account of the lodgment of the ball being so close to the spinal cord, he did not deem it proper practice to have attempted to remove same. If deceased had been his patient, and he was getting along all right, he would not have pursued this treatment. He *Page 421 further states, on account of the proximity of the ball to the spinal cord, it might have produced inflammation that might of itself have resulted in paralysis and death without the probing operation; that he could not testify there was any negligence or improper treatment of deceased. Drs. Curtis and Cammack, for defendant, agree with Dr. Shelton. Dr. Hall, who was also introduced for the State, states he would not regard it as improper professional treatment to attempt to extract the ball; that, under the circumstances, he would himself have tried to extract it. This is substantially all the expert testimony bearing on the cause of death.
Our statute, and the decisions under it, attribute the death to the wound, unless it is made to appear there has been gross neglect or manifestly improper treatment of the person injured. Art. 652, Penal Code. Now, recurring to the testimony, there is absolutely none showing any gross neglect or improper treatment. Three of the physicians merely say that, under the circumstances as detailed by the attending physician, they would not have pursued the treatment, or attempted to extract the ball, owing to its near proximity to the spinal cord. None of them assert it was negligence or improper treatment to have done so. It will be noted, in this connection, that these witnesses speak after the proximity of the ball to the spinal cord was demonstrated, and after its final removal, after death. Evidently Dr. Hengst had no way of determining the close proximity of the ball to the spinal cord when he attempted to remove it. In my view, the testimony of defendant's witnesses falls short of showing, or tending to show, any gross neglect or improper treatment. More than this, evidently it was a critical question for the attending physician to determine what was the best course to be pursued when he found the ball lodged in the vertebræ of the neck. To let it remain was dangerous; to attempt to remove it might be dangerous to the patient. And I think it can scarcely be said that the decision to attempt to remove it, under the circumstances, could be considered gross negligence or manifestly improper treatment, and I feel warranted in saying this because none of the physicians undertake to say it.
The court gave a correct charge on the phase of the case which involved the question whether or not the wound caused the death, or the wound, not being necessarily mortal, death was brought about by the gross neglect or manifestly improper treatment on the part of others, etc. I do not understand this portion of the charge to be criticised by appellant. I do understand, however, a majority of the court believe another portion of the charge, which is merely inserted in the general charge without being applied to the facts, is misleading, and was calculated to injure the rights of appellant. This charge is copied from our statute, and is as follows: "If the person inflicting the injury which makes it necessary to call aid in preserving the life of a person injured shall willfully fail or neglect to call such aid, he shall be deemed equally guilty as if the injury were one which *Page 422 would inevitably lead to death." It is contended there is nothing in the statement of facts authorizing this charge, and that this was calculated to confuse and mislead the jury. I concede there is nothing in the case requiring said charge, but I do not agree to the proposition that it being inserted in the charge as an abstract proposition was calculated to injure appellant. Much less do I agree to the construction placed on said statute in the majority opinion. Articles 652, 653, Penal Code, merely treat of the cause of death; and the expression in the latter portion of the last named article, to wit, "The person inflicting the injury, who willfully fails and neglects to call aid, shall be deemed equally guilty as if the injury were one which would inevitably lead to death," does not mean guilty of any particular grade of felonious homicide, but merely that the death under such circumstances shall be attributed to the person who caused the injury. And the giving of such a charge is not tantamount to telling the jury that appellant is guilty of any grade of felonious homicide, if he inflicts an injury from which death results, and willfully failed to call aid, but it does, in effect, tell the jury that if one inflicts an injury, and then willfully fails to call aid, such injury proving fatal, the death of the injured party shall be attributed to his act. Such being the construction of said article, was the giving of same in this case, as it was, calculated to injure appellant? The only real issue as to the injury causing the death was involved in the attempt to probe for the ball, or to extract same from its lodgment, in the neck of deceased, by the physicians. This proposition, as stated before, was submitted to the jury in a proper charge, and they found against appellant; that is, that there was no gross negligence on the part of the attending physician, and death was caused by the wound inflicted. Now, the jury could not have possibly believed there was any willful failure on the part of appellant to call in the physician after he shot deceased; for, as stated, there was no evidence on this point, and it was not an issue in the case. Since the recent statute, the rule is well established that a case will not be reversed for a misdirection in the charge of the court, unless it is shown that such charge operated to the prejudice of appellant. I do not believe any such prejudice resulted in this case, and the judgment of the lower court ought to be affirmed. *Page 423