The appellant was tried and convicted for the murder of her infant child, and her punishment assessed at confinement in the penitentiary for the term of five years. The indictment charges that the child was a female. The defendant moved for a new trial upon the ground that the evidence did not support the verdict. We have carefully examined the statement of facts, and found no evidence in support of the allegation “that the infant was a female.”' This averment being descriptive of the child, it must be proven. It is unnecessary to cite authorities upon this proposition; they are almost unanimous in its favor.
Counsel for the defendant, in them brief, desire an opinion of this court upon a question which appears in this extract from their brief: “Repeated trials of this cause have resulted in three convictions and one hung jury. Two appeals have been already prosecuted and as many reversals had. During the whole progress of the case, however, there has been a difference of opinion on the part of the court below and counsel for the defense touching the law bearing peculiarly upon the crime of infanticide, as set out in the charge and marked exhibit *270B. From this difference of opinion, to a great degree, has resulted a persistent defense, which has been based upon the theory that the State is required to prove, in prosecutions for infanticide, that there had existed in the child alleged to have been killed a circulation of the blood independent of the foetal circulation, and independent of the mother. The discussion of the question has been evaded in the opinions of this court heretofore rendered, reversing former judgments. It is believed that a definite settlement of the proposition of the law above enunciated will result in a virtual acquittal of the defendant, and the removal of the cause from the docket of the court below, which has unnecessarily entailed no little expense upon the county.” If we comprehend the counsel, we will try not to evade, but to solve the very difficult proposition propounded.
“Homicide is the destruction of the life of one human being by the act, agency, procurement or culpable omission of another.” The human being whose fife is destroyed, of course, must be living. But, as a child lives in its mother’s womb, and as the destruction of its life while thus hying may be held homicide, our Code provides that “the person, upon whom the homicide is alleged to have been committed, must be in existence by actual birth” Penal Code, art. 545: This evidently means a complete expulsion of the child from the body of the mother, alive. Being thus expelled, and hying, it is then and not till then the subject of homicide.
Ho witness being present, and the State having to rely alone upon circumstantial evidence, what evidence can and must be adduced to show life after actual birth, as above explained? Eight at this point, if we understand counsel, it is insisted that proof of an independent circulation must be made, and that it (independent circulation) does not follow from proof of respiration. Let us concede, for the sake of the argument, that to be a creature *271in being, separate and independent of its mother, the child must have an independent circulation; is not proof of respiration conclusive of independent circulation? We think so. Therefore it follows that if respiration is shown after birth, independent circulation is also established. Writers upon this subject, it is true, speak of the necessity of showing independent circulation; but it will be found that circulation is not questioned by a respectable authority if the child is shown to have breathed after birth.
The relation which subsists between the circulatory and respiratory systems of the new bom child, and the dependence of the former upon the establishment of the latter, have been settled beyond surmise by the researches of physiologists and accoucheurs. Immediately after its birth, and under the operation of influences not well understood, the infant breathes, and, the hitherto compressed air tubes and cells becoming distended with atmospheric air, expands the chest. The first act of respiration is described as exercising a suction force, by which the blood is directed from the channel through which it had flowed before birth, and is drawn to the lungs by means of vessels designed for that purpose. The first breath drawn by the child after its birth determines the circulation independent of its mother. The act of breathing is held by all physiologists and accoucheurs as constituting incontrovertible evidence of the individual existence of the infant, and, therefore, the accomplishment of its independent circulation. In support of these propositions we cite the following authorities: Marshall’s Outlines of Physiology (edition of 1868), p. 980; Dalton’s Treatise on Human Physiology, 5th edition, p. 704; Foster’s Physiology, edited by Reichert, 3d edition, p. 923; Flint’s Physiology of Man (1874), Vol. 5, p. 442; Carpenter’s Principles of Comparative Physiology, 4th edition (1854), p. 291; Cray’s Anatomy, Descriptive & Surgical, *2725th edition, p. 768; Wilson’s Human Anatomy, edited by Gobrecht (edition of 1858), p. 594; Theoretical & Practical Midwifery by Caizeaux, annotated by Fornier, 6th Am. ed. by Bullock (1875), p. 235; Leishman’s System of Midwifery, 2d edition, edited by Parry (1875), p. 138; Playfair’s System of Midwifery, edited by Harris, 2d edition (1878), p. 120; Principles and Practice of Obstetrics, by Bedford, 4th edition (1874), p. 264.
But we are here met with the argument that as the child may breathe before its head emerges from the pelvis of the mother, and as there is no birth until complete expulsion from the body of the mother, the breathing or respiration test stops short of proof of an independent existence. Scientific researches have pointed out the means by which it can be determined whether the child breathed before or after emerging from its mother. Should an effort to respire take place while the head is still within the pelvis, mucus and not air would be drawn into and fill the air cells; and upon a post mortem examination the lungs would disclose the exact nature of such a case. The mucus in the lungs would necessarily be discovered. If, however, a skilled accoucheur, in a case of difficult and continued labor, were to insert his hand for the purpose of rendering assistance to the child thus endangered by protracted labor, and the child were to respire by means of - the aid thus rendered, the post mortem examination would not yield any evidence, under these circumstances, as to whether there was respiration before or after birth. But as the mother can never perform this operation upon herself, this obstacle in the way of the test, above stated, will not present itself in a case of infanticide. But notwithstanding all this, it is necessary that the child should have been completely expelled from the body of the mother, and alive; the proof must show this fact.
The respiration test can never determine whether the *273child breathed after the expulsion of the head, or full and complete birth, for we have found the test to be the condition of the lungs; that is, if they show atmospheric air and not mucus, we are to conclude that the breathing occurred either after complete birth, after the head was expelled, or under the circumstances above stated, when relief is extended by the accoucheur. Here then we are brought by the logic of these facts to a gap,—a hiatus in the proof,— which cannot be bridged over by physiological research. Let us restate:—“The child must be expelled completely from the mother, alive, before being the subject of homicide. This being a case of circumstantial evidence, resort is had to the condition of the lungs. They show evidence of having breathed atmospheric air. This may have been done while passing from the pelvis, after the expulsion of the head and before complete birth, and it being necessary for the proof to meet that fact, hence, under the facts of this case, arises this insurmountable difficulty.” Greenleaf on Evidence, vol. 3, § 136; State v. Winthrop, 23 Iowa, 519; Regina v. Trillor, 1 Carrington & Marshman, 650.
Mr. Justice Parke seems to hold in Rex v. Enoch, 5 Car. & Payne, 539, that there may be breathing and yet no independent circulation. This we cannot concede. But it is believed that the idea sought to be conveyed by the learned judge is that, as there may be breathing before actual birth, the circulation of the child, though not through the umbilical cord, would not be independent; because of the child’s not being completely expelled from the body of the mother. For we hold that, though the condition of the lungs can never determine whether the child breathed before or after full and complete birth, yet, independent circulation in its proper sense follows breathing. See authorities above cited upon this subject. The umbilical cord need not be severed in order to establish a circulation independent of the placenta. On the other hand *274cases have been cited in which a child has been wholly severed from the mother, and respiration has not apparently been established until after the lapse of several minutes of time; and the learned judge in the case of State v. Winthrop concludes that during that time there must have been an independent circulation. This would have been physically impossible,—in direct conflict with the physiological organization of the child. Nor, if true, would it follow that circulation did not invariably and instantly follow breathing.
We are of the opinion that independent circulation is proved by breathing; but, be this as it may, it being absolutely necessary to prove that the child was completely expelled from its mother, and that, after being thus born, it had an independent existence,— that is, that the child breathed, and its blood circulated independent of its mother,— before it can be the subject of homicide; and as the breathing test cannot determine whether the breathing occurred after complete birth, or after the head was expelled and before full and complete birth, a determination of the truth or falsity of the above apparently conflicting positions is unnecessary; the respiratory test being unable to reach and grapple the question, to wit, was the breathing after full birth, as above defined, or after the expulsion of the head and before complete birth? And as the facts in this case render it quite possible for the string to have been placed around the neck of the child after the appearance of the head and before full and complete birth, it becomes imperatively necessary for the attention of the jury to be plainly^ and directly called to the case as made by the evidence upon this fact and the physiological facts. Was this done by the court below? We think so.
Upon this subject the learned judge charged the jury that “Homicide is defined as the destruction of the life of one human being by the act, agency or procurement, or *275culpable omission of another. The person upon whom the homicide is alleged to have been committed must be in existence by actual and complete birth.” And also: “In order that a child be in existence by actual birth, the parturition must be complete, and the body of the child must be expelled from the mother, and it must be alive, having an independent existence; so that the destruction of vitality in a child, before it is completely born, or the doing of any act before it is completely bom, which causes death after the birth, is not a homicide, however culpable, or under whatever circumstances, or with whatever intent done.
“But if a child be wholly born alive, however frail it may be, and however near extinction from any cause, and another person inflict upon it any violence intentionally, by means or in a manner ordinarily calculated to cause death, which cause contributes to or hastens its death, such person is guilty of homicide.
“If you believe from the evidence before you, beyond a reasonable doubt, that the defendant, Sallie Wallace, did give birth to a female child, at or about the time alleged in the indictment, and in the county alleged; that, said child, if any, was born alive and in existence by actual and complete birth, as the same has been explained; and that at or about the time alleged, and in the county alleged, and after said birth, if any, and before the indictment was presented, the defendant, Sallie Wallace, did violently and intentionally, and by the means and in the manner alleged kill said child,” etc.
Also: “If you believe from the evidence that defendant did give birth to a child as alleged, and that said child did possess vitality before it was bom, and that before it was completely born she destroyed the vitality of the child, or before it was born inflicted violence upon it of which it afterwards died, you will acquit the defendant, whatever may have been her intention, as in such case *276the destruction of life would not be a homicide; and if you believe there was a child so born, and that its vitality, if any, was destroyed by violence inflicted by defendant, but in view of all the evidence you have a reasonable doubt as to whether the violence was inflicted before complete birth, or before actual existence after birth, or have a reasonable doubt as to whether such violence, if any, was inflicted with the malicious purpose to destroy the life, if any, you will find the defendant not guilty.”
By this charge the jury were told, in a plain and excellent manner, that there must be a complete birth,'—-independent existence,—to constitute a subject for homicide. It is true that the judge did not tell the jury that, to establish this independent existence, there must be evidence of breathing and an independent circulation. These were matters of evidence. These facts constituted the evidence of the independent existence, and we will presume that the jury were possessed of a sufficient amount of common sense to deal with and solve the issue. To us it appears that the principles contended for by counsel for defendant were fully recognized by the judge, and correctly applied in his charge.
Let us, however, return to the logical conclusion forced upon, us by the facts and principles of this case, which are formulated in the question: Is the verdict of the jury supported by the evidence? Do the facts, viewed under the light of the above principles, show that the life of the child was destroyed after complete birth? Where, in the whole range of facts, is it not shown that the violence used was not inflicted after the head of the child was expelled and before a complete birth,—before an independent existence was established? What evidence fills the vacuum? Must the reasonably possible fact be ignored, that all shown to have been done by defendant may have occurred after the head had been expelled and before actual birth,—before an independent existence?
*277The post mortem examination made by the physician fails to reach and solve this question. The law requiring that the person charged to have been killed must be in existence,-—living, with an independent circulation,— with all of the vital organs in operation separate and independent of his mother, before he can be the subject of homicide, the proof must clearly and satisfactorily show a person with just such an existence, before a party can be found guilty of culpable homicide. Nor is this court to take into consideration questions of good or bad policy. We are to pass upon acts made penal by the law of the land, and it is our duty to see that every constituent element and necessary ingredient of the offense be reasonably and satisfactorily proved. In this case we are of the opinion that the evidence fails to establish the independent existence of the child at the time the violence was inflicted, if any. 3 Greenleafs Evidence, § 136. We are not to be understood as holding that there may not be cases in which the evidence or proof resulting from a post mortem examination, though imperfect within itself, may not be so supported by the surrounding facts as to justify a conviction in purely circumstantial cases. The investigation may leave it in doubt whether the violence was inflicted before complete birth; but, taking the fact that the child respired, though uncertain when, in coimection with the character and extent of the violence inflicted, - a case may be clearly and conclusively proved.
The record fails to show that the child was a female, and failing to support the verdict on the main point, the judgment must be reversed and the case remanded.
Reversed and remanded.