The State was permitted, over the objections of the defendant, to introduce evidence proving that the defendant, some three years before deceased was shot, had been convicted of the burglary of deceased’s house, and that he had served his term in the penitentiary, and returned. This testimony, we think, was admissible for the purpose of establishing a motivfor the killing, and a malicious intent. It is somewhat remote, it is true, but still it tends in some degree to show a motive actuating the defendant in shooting the deceased, if in fact he did shoot him, and that such motive was a revengeful and malicious one. -Taken in connection with the other facts in the case, we do not think the court erred in admitting this evidence. (Dill v. The State, 1 Texas Ct. App., 278; Coward v. The State, 6 Texas Ct. App., 60; Somerville v. The State, 6 Texas Ct. App., 433; Rucker v. The State, 7 Texas Ct. App., 549.)
Alexander Pope, a witness for the State, was permitted to testify upon the trial, over the objections of the defendant. The objection made to his testifying was that he had not been sworn and placed under the rule, as had the other witnesses in the case. It appears from the record that Mr. Pope was an attorney of the court, and was one of the counsel representing the State in the prosecution of this case. The enforcement of the rule for sequestering witnesses is a matter largely confided to the discretion of the trial judge, and in the absence of anything showing an abuse of this discretion, his action in the matter will not be revised by this court. In this case no abuse of the discretion *253confided to the judge is apparent, or even pretended. (Walling v. The State, 7 Texas Ct. App., 625.)
The court, in its charge to the jury, instructed the jury upon both degrees of murder. This is objected to by defendant’s counsel, and it is urged that the court erred to the prejudice of the defendant in charging upon murder in the second degree, because the evidence did not warrant such charge; that if the evidence showed that the homicide was the act of the defendant, it was murder in the first degree. We think the evidence called for a charge upon both degrees of murder, and that the court acted properly in giving the instructions it did, and the jury by their verdict, finding the defendant guilty of murder in the second degree, conclusively shows the propriety of the charge. (Edmondson v. The State, 41 Texas, 496; Holden v. The State, 1 Texas Ct. App., 225; Gatlin v. The State, 5 Texas Ct. App., 531.) The court charged upon the defense of alibi, stating in the charge that this was the defense relied upon by the defendant. This is objected to because, as counsel says in his brief, it was not true in fact, and because it was a charge upon the weight of evidence. We do not agree with counsel upon this charge. The only defense set up in the case under the plea of not guilty was that of an alibi. We can see no impropriety in the statement of this fact in the charge of the judge when he instructed the jury upon this defense. In our judgment it was not a charge upon the weight of evidence, and was not calculated to injure the rights of the defendant.
The sufficiency of the evidence to support the verdict and judgment of conviction is the only remaining question in this case. The evidence proves that on the night of February 15, 1882, the deceased, Mack Allen, was shot, the shot taking effect in his leg near the knee joint; that this occurred in the city of Marshall, Harrison county, Texas. He died on the nineteenth of March, 1882, more than one month after he was wounded. Two physicians who examined his wound, and who attended him until his death, testified that it became necessary, in their judgment, to amputate the wounded limb, and they did amputate it; that some days after the amputation, and a short time before his death, he had two attacks of colic, and was all the time troubled with diarrhoea; that these diseases tended to weaken him; that the day before he died his abdomen swelled up tight, and he complained of intense pain in his bowels. The diarrhoea, followed by the swelling of the bowels, they attributed *254to an abscess formed in the bowels. They both state that Allen died from the wound inflicted on his leg, the diarrhoea, the swelling of and pain in the bowels, all combined; but that the wound caused all these things. The question is raised as to the sufficiency of this evidence to establish the corpus delicti. It is shown by the proof that the deceased was carefully nursed and attended to from the time he was wounded until he died, and that his physicians resorted to every treatment suggested by their skill and experience, to save his life. The physicians state positively that the wound produced the diseases with which the deceased was affected, and that the wound and the diseases combined produced his death.
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.) The same rule has been incorporated into our Penal Code in Articles 547 and 551. The opinion of medical experts as to the cause of the death is always admissible when such cause is involved in doubt, and there were no witnesses to the occurrence. (Shelton v. The State, 34 Texas, 662.)
In this case, we think the corpus delicti was sufficiently established by competent evidence, and that the evidence in other respects was amply sufficient to support the conviction.
The charge of the court is comprehensive and correct, and as favorable to the defendant as the facts, and the law applicable to such facts, would warrant. We have discovered no error *255demanding a reversal of the judgment, and it is therefore affirmed.
Affirmed.
Opinion delivered November 18, 1882.