Whilst concurring in the disposition made of this case, I do not agree to that portion of the opinion which approves as correct law the twelfth and thirteenth paragraphs of the charge of the learned trial judge, and which are quoted at length in the opinion of Judge Hurt.
In order that my views may be properly presented and understood, I will first refer to and state the common law upon the subject embraced in the said paragraphs of said charge, and then show wherein, in my judgment, the provisions of our Code upon the same subject prescribe rules in some respects essentially different from the common law, and from the charge referred to.
Mr. G-reenleaf very tersely states the rule of the common law as follows: “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.” (3 Greenl. Ev., sec. 139.)
Lord Hale states it thus: “If a man give another a stroke which, it may be, is not in itself so mortal but that with good care he might be cured, yet if he dies within the year and day, it is a homicide, or murder as the case is; and so it has always been ruled. But if the wound be not mortal, but with ill appli*629cations by the party, or those about him, of unwholesome salves or medicines, the party dies, if it clearly appears that the medicines and not the wound was the cause of the death, it seems it is not homicide; but then it must clearly and certainly appear to be so. But if a man receive a wound which is not in itself mortal, but for want of helpful applications or neglect it turns to a gangrene or a fever, and the gangrene or fever be the immediate cause of the death, yet this is murder or manslaughter in him that gave the stroke or wound; for that wound, though it was not the immediate cause of the death, yet if it were the mediate cause, and the fever or gangrene the immediate cause, the wound was the cause of the gangrene or fever, and so consequently causa causans.” (1 Hale, P. C., 428.)
The foregoing quoted texts are fully supported by other distinguished authors upon criminal law, and by numerous adjudged cases, both English and American. (1 Russ. on Crimes, 505; Roscoe’s Cr. Ev., 717; 2. Bish. Cr. L., sec. 635 et seq.; Com. v. Green, 1 Ashmead, 289; State v. Scott, 12 La. Ann., 274; Com. v. Hatchett, 2 Allen, 136; Parsons v. The State, 21 Ala., 300; Livingston’s Case, 14 Grattan, 592; Com. v. Fox, 7 Gray, 585; State v. Morphy, 33 Iowa, 270; Regina v. Holland, 2 M. & Rob., 351; Allison’s Cr. L. Scotland, 147.)
This common law doctrine has likewise been quoted and approved by this court, but in the cases in which this was done it does not appear that the question presented in the case now before us was raised or considered. I do not, therefore, regard the questions as having been directly passed upon and determined in either of those cases, or in any other case decided by this court. The two cases I allude to are Williams v. The State, 2 Texas Court of Appeals, 271, and Powell v. The State, 13 Texas Court of Appeals, 244.
As I understand the twelfth and thirteenth paragraphs of the charge of the court, which are approved by Judge Hurt, they ¡ are a substantial enunciation of the common law upon the sub - • ject under consideration. This being the case, the same are correct, unless the common law has been changed by the provisions of our Code. I will now proceed to point out wherein, in, my opinion, the common law with reference to this subject has ■ been materially changed, modified and ameliorated by our stat- j ute. I will first quote at length the articles of our Penal Code bearing upon the question. They are as follows:
“Article 546. Homicide is the destruction of the life of one *630human being by the act, agency, procurement or culpable omis- . sion of another.
“Article 547. 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.
“Article 548. The foregoing article, in what is said of gross neglect or improper treatment, has reference to the acts of some person other than him who inflicts the first injury, as of the physician, nurse or other attendant. If the person inflicting the injury which makes it necessary to call aid in preserving the life of the person injured, shall wilfully 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.”
It is to be noticed that there is a difference, though perhaps not a very material one, between the definition given at common law of “ homicide,” and that given in our Code. Blackstone defines it as “the hilling any human creature.” (4 Black. Com., 177.) Hawkins defines it “the hilling of a man bya man.” (1 Hawk. Pl. Cr., C. 8, sec. 2.) Our Code is more specific, and states it to be the destruction of the life of one human being, by the act, agency, procurement or omission of another. And it ■ goes still further and requires that the destruction of life must be complete; not only so, but must be complete by the act, agency, • procurement or omission aforesaid-—that is, it must be complete by the act, etc., of the defendant. I find no such special requirement as this in the common law, though it may perhaps be em-. braced within the general rules on the subject. I have merely called attention to these differences to show that our Code upon this subject is by no means an exact copy from the common law, but contains some things which are not expressed so fully, if expressed at all, by the common law writers.
I come now to the most material points involved in this contention. What is meant by the words “ but although the injury which caused death might not, under other circumstances, have proved fatal,” used in Article 547 above quoted? In my judgment they refer to all injuries which are not of themselves inevitably fatal, or which are not inflicted under circumstances which make them inevitably fatal. In other words, all injuries which under the circumstances of the particular caso are not mees-1 *631sarily fatal, but which may cause death. An injury which must cause death under any state of circumstances, such as the severance of the head from the body, the severance of the carotid artery, or the breaking of the neck, would not come within the meaning of the words quoted. For injuries of this character no legislation is required, because they cannot be affected either by cure or negligence, skillful or unskillful treatment. They produce death in spite ofany human aid. But, if the injury be such that death is not acertain result thereof, if it be such that human aid and skill may prevent its fatal termination, then it is such an injury as the words quoted refer to. I need no better illustration of the idea I am endeavoring to express than the case before us. In this case the wound inflicted upon the deceased by the defendant was a mortal wound, but it was not necessarily fatal; it would not surely and inevitably produce death; it was within the power of human aid and skill, perchance, to prevent it from terminating fatally. It was, therefore, in the language of the statute, “ an injury which might not, under other circumstances, have proved fatal.” That is, this injury, if it had been properly treated, skillfully attended to, by those called to treat it, might have been cured and the life of the deceased saved. But if it had nevertheless produced the death, although by proper and timely aid and treatment death might have been prevented, still it would be homicide by the act of the defendant, unless it should appear that there had been gross neglect or manifestly improper treatment of the person injured by some other person than the defendant.
In my opinion, just here is the important change made by our statute in the common law. At common law the neglect or improper treatment must produce the death in order to relieve the person who inflicted the original injury from the homicide. Such neglect or improper treatment, and not the wound, says Mr. Greenleaf, must appear to be the sole cause of the death. Our statute, as I interpret it, does not require that the neglect or improper treatment should produce the death, either in whole or in part. If there be gross neglect, or manifestly improper treatment, either in preventing or in aiding the fatal effects of the ' injury, the death of the injured person is not homicide by the party who inflicted the original injury. To illustrate: If A should cut B with a knife, severing a small artery, this wound would not be necessarily fatal, yet it would certainly prove so *632unless properly and promptly attended to. The injured party would surely bleed to death in a short time if left without proper aid, but with proper treatment the artery would be closed, the flow of blood thereby stopped, and death prevented, blow, suppose a surgeon is called to treat this wound, and, instead of attempting in any way to stop the flow of blood, he administers to the wounded man chloroform, and leaves him to bleed to death; Here would be gross negligence, manifestly improper treatment of the injured person, and yet the death of such person would be the result solely of the wound, and not of the neglect or improper treatment. At common law this would be homicide. Under our Code, in my opinion, it would riot be homicide in A who inflicted the wound, but it would be homicide in the surgeon who permitted the man to bleed to death, when, by the exercise of proper care, and the use of well known and effective means, he could have prevented it. I think “ gross neglect and improper treatment,” as used in our statute, are not only such as produce the destruction of life, but are such, also, as allow, suffer or permit such destruction of life.
In this connection, and in support of my construction of those provisions of the Code, I call attention particularly to that portion of Article 548, which provides: “If the person inflicting the injury which makes it necessary to call aid in preserving the life of the person injured shall wilfully 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.” I find no such provision as this in the common law. What is the object of this provision? Manifestly it is to cause the person who inflicts a personal'injury upon another to furnish such aid as may be necessary to prevent a fatal result of such injury. What is the effect of the provision? If the party who inflicted the injury wilfully fails to furnish the aid necessary, and the injured party dies from the injury, the injury is regarded as inevitably fatal, and no question as to neglect or improper treatment can arise in the case as a matter of defense. In such case he who inflicted the injury would not be excused of the homicide, even had the death in fact been produced solely by the gross negligence or manifestly improper treatment of those who had the treatment of the case. But, on the other hand, suppose there is no such wilful neglect of the defendant to call aid; suppose he promptly , calls-a surgeon who has the reputation of being learned and' skillful in his profession, and suppose this surgeon grossly neg-¡ *633lee ts the case, or, treats it in a manner manifestly improper, what then is the meaning and effect of this provision? In such case, in my opinion, the homicide is shifted from the defendant to the surgeon, and I cannot read these articles of the Code in any other light. The provision I have last quoted, it seems to me, is inconsistent with the common law rule, but harmonizes with and makes perfect the rule which, I think, is prescribed by the Code.
If, as contended, the author of the Code merely intended, in the three articles quoted, to declare the common law rule upon the subject, he certainly did not do so very clearly or forcibly, and yet among all the great productions there is not perhaps a more perfect work than our Penal Code. I am sure that those articles were intended to, and do, modify the common law rule, and to the extent that I have suggested, and consequently beyond the limits of the charge given to the jury in this case. In this connection I will say that our Supreme Court, in the case of Brown v. The State, 38 Texas, 482, in referring to said articles of our Code, said: “Our law undoubtedly changes the rule of the common law, the theory of which was that he who caused the first injury should be held guilty.” The subject is not discussed in that opinion, nor are the changes referred to pointed out, and the case is only valuable for the purpose of showing that this is not the first time that the common law rule upon this subject has been challenged, and denied to be the law of this State. I do not wish to be understood as approving the changes in the common law rule which, in my opinion, have been effected by our statute. It is no business of mine whether such changes are wise or impolitic. My duty and my desire is to arrive at an understanding of the case as it is, not the law as I might wish it to be.
It is not a consequence of this view of our law that the defendant would escape all punishment for his criminal act. While he might not be guilty of homicide, he might yet be guilty of an assault with intent to murder, and might properly be convicted of such offense under the indictment in this case. (Code Crim, Proc., Art, 714; Peterson v. The State, 12 Texas Ct. App., 650; Stapp v. The State, 3 Texas Ct. App., 138.)
I think that the learned trial judge should have instructed the jury upon the law of the offense of assault with intent to murder, even under his view of the other law of the case. I presume he did not give such instructions because they were not requested, and for the further reason, perhaps, that he did not think the evidence justified them, I do not regard the evidence *634as so conclusive in its nature, in regard to the cause of the death, as to exclude that issue from the consideration of the jury. It was a part of the defense that it was the gross neglect and the manifestly improper treatment of the surgeons that produced the death, and not the wound inflicted by the defendant. This was one of the issues presented by the defense. "íhe State proved, by a number of physicians and surgeons who had examined the case, that, in their opinions, the wound inflicted by the defendant was the sole cause of the death. This evidence, it is true, was competent and sufficient, but it was not conclusive. It might be met, and, perhaps in the estimation of the jury, be wholly overthrown by other evidence in the case. The jury were the judges of the credibility of the witnesses, and of the weight of the testimony. Some of these expert witnesses who gave it as their opinion that the wound inflicted by defendant alone caused the death, had themselves inflicted mortal wounds upon the deceased. They had sawed twice into the back portion of the deceased’s skull, and had taken out two pieces of the skull bone. These surgical wounds were in a very vital portion of the skull, and where the skull was perfectly sound. All the expert witnesses admit that these wounds were unnecessary, and were perhaps mortal wounds, but that, in their opinions, they did not cause the death. It seems to me that this evidence . should have been submitted to the jury for their opinion in connection with instructions as to the law of assault with intent to murder. Under the charge as given to the jury, they had but one alternative, and that was to convict the defendant of homicide, or acquit him of any offense whatever. The charge of the , court did submit to the jury the issue as to the cause of the i death. Having done this, it seems to me to follow, as a matter I of course, that instructions as to assault with intent to murder should have followed.
I must say, further, that I do not think the charge upon justifiable homicide is entirely correct. It required the defendant to resort to all other means except flight of preventing the threatened injury, to himself before taking life, regardless of the imminence of his peril. I think the law upon this subject has been settled otherwise by several decisions of this court. (Kendall v. The State, 8 Texas Ct. App., 569; Foster v. The State, 11 Texas Ct. App., 105; King v. The State, 13 Texas Ct. App., 277.)
*635White, Presiding Judge.I have read with much considera-
tion and great interest the very able opinions of my brethren as to the proper construction to be given the language of Articles 547 and 548 of the Penal Code. My conclusions are that the views expressed by Judge Willson are correct. I am, therefore, constrained to concur in his opinion, however much I may doubt the wisdom or the policy of a statute which, in my humble judgment, properly admits only of such construction. It does occur to me that if the injury which causes the death under the conditions named in the statute would only amount to homicide, without its appearing that there has been any gross neglect or improper treatment of the person injured, that then the converse of this proposition must also follow inevitably, viz: that, if it does appear that there has been any gross neglect or improper treatment of the party injured, by the physician, nurse, or other attendant, it is not homicide in him who inflicts the first injury, Our business is to interpret the law as we find it in the Code. With its policy we have nothing to do.
For the additional reasons stated in Judge Willson’s opinion, the judgment should he reversed and the cause remanded.
Reversed and remanded.
Opinions delivered June 27, 1884.