ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant again complains because of the testimony of Dr. A. L. Nanney, contending that the hypothetical question propounded to the doctor did not contain all the facts and circumstances surrounding the treatment of the deceased, beginning at the time the deceased was wounded and continuing until the time of his death. The question objected to came in the testimony of Dr. Nanney after he had related the circumstances told to him as to the wound, its character and the deceased’s reaction thereto, as we'l as the early trip to the hospital. The doctor answered many questions propounded to him by both sides of this controversy. His testimony, as finally summed up, was as follows:
“So far as the conditions have been presented to me from the hypothetical questions propounded, there has been nothing that would indicate to me that the doctor who performed the first examination committed any gross neglect. I have not seen any signs of any gross neglect presented either by the hypothetical questions or from what I saw of the patient myself. There has been nothing that led me to believe there was any gross negligence on the part of the physician or anyone taking care of him.”
We can see no reason to say that these different questions based on hypotheses raised by the evidence should again have been reiterated in the answer just above quoted. The answer made the basis of Bill No. 4 is as follows :
“Q. If surgery wasn’t recommended within twenty minutes after the injury occurred, or after the patient was brought to the hospital, and surgery was not recommended, taking into consideration the size of the deceased and his physical body, you wouldn’t consider failure to recommend surgery to amount to gross neglect in that case, would you?”
To which question the witness answered, “No, sir, I would not.” The main objection to this question is that it did not contain all the facts known to the court to have existed at such time. This witness’ testimony was twice used on the trial, and after the facts relative to a preparation for an operation and the deceased’s sudden death and a description of the injuries to deceased’s body, the doctor was asked many hypothetical ques*364tions by both sides to this controversy, the last one appearing above seeming but a summation of the effect of his testimony relative to gross neglect or improper treatment of the deceased.
Article 1202, P. C., provides as follows:
“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.”
This article changed the rule which at common law was based upon the proposition that he who committed the first injury was the cause of death regardless of the improper treatment. However, we now find the law to be that although without the injury there would be no death, proof of gross neglect or improper treatment will call for an instruction upon the part of the court that if such death was brought about by improper treatment or gross neglect of the physicians, the accused would not be guilty of homicide. See McMillan v. State, 58 Tex. Cr. R. 525, 126 S. W. 875; Morgan v. State, 16 Tex. App. 593; Franklin v. State, 41 Texas Crim. R. 21; Johnson v. State, 43 Tex. Cr. R. 283, 65 S. W. 92.
In our early jurisprudence this rule was laid down in Powell v. State, 13 Tex. App. 244, as follows:
“It is an ancient and well settled principle of the law of homicide, that, if a wound causes a disease which produces death, the death is imputable to the wound. (Hale’s P. C. 428; Whart. Cr. Ev., 382; 2 Whart. Am. Cr. Law, 1064; Kee v. The State, 28 Ark., 155; McAlister v. The State, 17 Ala., 439; Coffman v. The Commonwealth, 10 Bush. Ky., 495.) Mr. Greenleaf lays down the doctrine thus: ‘If death ensues from a wound given in malice but not in its nature mortal, but which being neglected or mismanaged the party died, this will not excuse the prisoner who gave it; but he will be held guilty of the murder, unless he can make it clearly and certainly appear that the maltreatment of the wound, or the medicine administered to the patient, or his own misconduct, and not the wound itself, was the sole cause of his death; for if the wound had not been given, the party had not died. So, if the deceased were ill of a disease apparently mortal, and his death were hastened by injuries maliciously inflicted by the prisoner, this proof will support an indictment against him for murder; for an offender shall not apportion his own wrong.’ (1 Greenl. Ev. Sec. 139.)”
*365This rule has been followed in many eases. See Wilson v. State, 126 S. W. (2d) 977, 136 Tex. Cr. R. 590; Gardner v. State, 44 Tex. Cr. 572, 73 S. W. 13; Duque v. State, 56 Tex. Cr. R. 214, 119 S. W. 687; Corpus Jur. Sec. Vol. 40, p. 855, and cases there cited; also 8 A. L. R. p. 522, note.
Under this condition of the law, appellant attempted to make proof of gross neglect and improper treatment. Evidently under the circumstances here present, neglect or improper treatment could only be shown by the testimony of those whose training had equipped them to testify as experts in such matters, that is to say, by the testimony of a physician or surgeon; and we find Dr. Nanney’s testimony in answer to such proposition. After having been familiarized with the circumstances sur^ rounding this incident and the treatment of the deceased, the doctor’s answer could only be that there was improper treatment present or that no such improper treatment was shown. We find his answer thereto to be that none such was shown, and the jury evidently followed such testimony.
We then advert to the trial court’s charge and find that he gave in the charge to the jury a presentation of the law as above referred to, and we see no fault to find therewith.
The motion for a rehearing will be overruled.
HAWKINS, P. J„ absent.