Omitting formal averments, we reproduce the charging portion of the indictment, which is as follows: “ One Catherine Sheppard . . . with force and arms, in the county and State aforesaid, then and there being an adult female, pregnant and big with a certain child, did then and there give birth to said child, which was then and there wholly born alive and in existence by actual birth, then and there having an independent circulation and existence, separate and apart from her, the said Catherine Sheppard, the mother of the same; and the said Catherine Sheppard, immediately after said child was then and there born alive as aforesaid, in and upon the person of her said child unlawfully, wilfully, feloniously and of her malice aforethought, did then - and there make an assault; and that she, the said Catherine Sheppard, in some way and manner and by some means to the grand jurors unknown, did then and there wilfully, feloniously and of her malice aforethought, kill and murder her said child, so that said *81child then and there instantly died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Catherine Sheppard her said child in the manner and form aforesaid, and by the means aforesaid, wilfully, feloniously and of her malice aforethought did then and there kill and murder,” etc.
It will be noticed that the means, instrument, etc., with which the murder was effected are not stated. With regard to this peculiarity it is well settled that it is sufficient to allege that the murder was committed in some way or manner, and by some means, instruments and weapons, to the jurors unknown.” (Walker v. The State, 14 Texas Ct. App., 609, and authorities there cited.) We are of opinion the indictment sufficiently charges the offense of infanticide upon a child newly born. (Sallie Wallace v. The State, 7 Texas Ct. App., 570, and same case, 10 Texas Ct. App., 255.)
Ho objection is urged to the charge of the learned judge to the jury in this case, and it appears to be a clear enunciation of the law applicable to the facts, in accordance with the principles declared in the Sallie Wallace cases, supra. There are in the record no bills of exception to the admission or rejection of evidence.
The only question for us to determine is as to the sufficiency of the evidence to sustain the verdict and judgment. Let us concede that it is sufficiently established that appellant gave birth to the •child which was found dead in the box which was discovered buried in the ravine. Does the evidence sufficiently show that the child had been born alive and that it was killed after its birth?
Dr. Shaw, who saw the child, says the child was well developed and apparently full grown. He examined it carefully and saw no marks of violence upon its body. He opened the body and its heart and lungs had a healthy appearance. A diaper or napkin wras found upon the child, which was stained as though it had had an evacuation, and this, in his opinion, was a strong indication that the child vras born alive. He did not apply the hydrostatic test to the lungs,— the best test knowm to medical science for determining whether or not the lungs have ever been inflated by air. His opinion, from his examination of the body and hearing the testimony of the other witnesses, was that the child had been born alive, and had an independent existence, separate from its mother. In addition to other facts, he stated that the umbilical cord had been tied.
Dr. Hetties, who heard Dr. Shaw’s testimony, and having had the testimony of the other witnesses stated to him, said that from this testimony “ I could not say that it (the child) had a separate existence from that of its mother. The best test known to medical *82science, to determine whether the child breathed or not after birth, is the hydrostatic test. A full grown child, with full head of hair and well turned and rounded nails, might come still-born, and its skin might have a healthy appearance.”
To say the least of it, the evidence that the child was born alive is susceptible of doubt. But concede this fact. Did its mother murder it? ETo violence is seen on the body of the child. The most inculpatory facts are that she concealed its birth, that it was- ' found buried in an out of the way ravine, and that she left that section of the country, and perhaps denied her name when the officer went to arrest her. These, doubtless, are suspicious facts, but in the absence of any evidences of violence upon the dead body we do not think they are in themselves sufficient to establish the fact that she murdered her child.
On account of the insufficiency of the evidence to sustain the verdict and judgment, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
[Opinion delivered October 25, 1884.]