I. It was not error to overrule the motion in arrest of judgment, based upon the insufficiency of the indictment. It is well settled by the decisions in this State that the form of an indictment for murder such as the one used in this case is sufficient. (Willson’s Cr. Forms, p. 173, Form 388, and note thereto.)
II. This court cannot consider the assignment of error calling in question the refusal of the court to grant the defendant’s application for a continuance, because there is no bill of exceptions in the record presenting that question. (Prator v. The State, 15 Texas Ct. App., 362, and cases there cited.)
III. To our minds the only serious question in this case is as to the sufficiency of the evidence to sustain the conviction. Does the evidence sufficiently establish that the death of the deceased was produced by the criminal act of any one, and was not the result of *88accident or natural causes ? This must be clearly and satisfactorily proved by the State. Mr. Bishop says it must be proved with “ particular clearness and certainty.” (1 Bish. Cr. Proc., § 1059; Lovelady v. The State, 14 Texas Ct. App., 545; S. C., 17 Texas Ct. App., 286; Walker v. The State, 14 Texas Ct. App., 609; Ah Hang v. The State, 18 Texas Ct. App., 675.)
It appears from the evidence that the deceased was last seen alive late in the evening, near the residence of Tucker Boss. He was drunk, and was in charge of a wagon drawn by two mules and a mare. When last seen he was with his wagon and team, which were descending a hill on the road. At that time he seemed to be in the act of mounting one of the mules, which he rode while driving his team. Early on the next morning, not far from the place where he was last seen alive, his dead body was found on the side of the road, the body being face downward, and the head in the direction he was traveling when last seen alive. Upon the breast of his dead body was found a wound, which had been made apparently with some sharp instrument such as a knife. This •wound was just below the left nipple. It was about three-fourths of an inch wide, but there is no evidence as to its depth. One of the witnesses ran a stick into it, about one inch and a half, but did not know whether or not the wound extended to the hollow. Under the dead body about a teacupful of blood was found, which had flowed from this wound. Deceased’s clothes were also bloody. Ho further examination was made of the wound than above stated, and no examination was made to ascertain whether or not the deceased was injured in any other way. The jury of inquest and the trial jury concluded that this evidence sufficiently established that the death of the deceased was produced by the wound in the breast, and the jury of inquest seem to have made no further inquiry as to the cause of the death, not even ascertaining whether or not the instrument which inflicted the wound had penetrated to the cavity of the chest.
We do not think that a conviction should be permitted to stand on such uncertain, and, to our minds, unsatisfactory testimony as to so important a matter as the cause of death. It was certainly within the power of the jury of inquest to have ascertained clearly and certainly the extent of the w'ound, and whether or not it was of a character likely to produce death. If it was a superficial wound, not reaching to the cavity, not severing any artery, or large vein, it is not probable that death resulted from it. It was not proved that it was more than a superficial wound, or that it was in any respect *89a mortal one, and in the absence of such evidence the defendant is entitled to the presumption that the wound was not a mortal one, and did not produce the death of deceased.
It is not clearly and satisfactorily shown that the deceased did not die from accident or natural causes. It was a cold night, the ground being covered with snow, and the deceased was drunk, tinder these circumstances he may have frozen to death. He had also been greatly excited just before leaving Boss’s house, and left there in a state of great excitement, having been there engaged in an altercation and fight in which he had been pushed or knocked down.
It is not unreasonable or improbable that under these circumstances he may have died from a natural cause, such as congestion, heart disease, etc.
We cannot give our sanction to a conviction upon testimony of so inconclusive a character. By doing so we would make a precedent dangerous to life and liberty, and in conflict with the wise requirements of the law.
Because the conviction is not sustained by the evidence, the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered October 24, 1885.]