A very insistent motion for rehearing has been filed in this case. The position is taken that the original opinion making reference to the wound found and the conclusion as to the depth of the wound, and further saying that it "undoubtedly" pierced the aorta, was without support in the evidence of the case. We have carefully examined the testimony given by Mr. Moffett, a policeman, from which we quote the following:
"I found a very small wound and no blood at all on the outside and the way I discovered it was by a white spot. The wound had closed up it looked like. The wound was right up here in the soft spot behind the shoulder blade on the left hand side. It looked like the wound was right straight down. * * * At that place I had occasion to examine that wound and I would say the wound was approximately four inches deep; it extended right straight down from his shoulder from the soft portion behind the shoulder blade."
On cross examination the witness said that when he saw the deceased before he died he showed no signs of having been running or of doing any violent exercise. He was weak and, further, "The way we found out how far it had gone down, we ran a probe in there at the undertaking parlor, the undertaker and myself. * * * Actually, I do not know how far it went in." *Page 389
As we understand that language, he meant to say he did not know exactly how far it went, but there is no relenting indicated from his position that it was about four inches as stated in the direct testimony. This, we think, warrants the statement in the original opinion.
Doctor Watson was then placed on the witness stand and was asked a hypothetical question reasonably and fairly embracing the foregoing testimony. In view of the things stated, as observed by the witness and included in the testimony, and in view of the death of the party, it was the doctor's conclusion that this wound must have pierced the aorta and also that the wound produced death. This sufficiently warrants the rest of the statement made in the original opinion and also answers the argument made in the motion relative to that portion of the original opinion. We do not think that the evidence amounted to guessing or conjecture, but that it was substantial testimony of sufficient potency to authorize the jury to find as they did under all of the facts of the case and the charge of the court.
It is insisted that the opinion in this case is directly in conflict with Guerrera v. State, 148 S.W.2d 421, a recent opinion by this court. We have carefully reviewed the record in both cases and are at loss to find the inconsistency insisted upon. In the Guerrera case the witnesses, including the doctors, did not have sufficient testimony to authorize them to reach a conclusion. This fact was admitted directly and positively by each one of them. They had opinions and they so stated, followed each time by an admission that they could not be certain. We simply held that if their investigation was of such a character that they could not be certain, the State was in no position to ask the jury to do more than the witnesses themselves could. In the instant case it is admitted the evidence could have been improved upon by holding an autopsy, but it appears that the witnesses could reach a satisfactory conclusion without an autopsy. Having done so, and having produced admissible testimony to that effect, the State was not in the position of asking the jury to go further than the witnesses themselves were able to go. Consequently, in response to the very respectful and earnest plea in the motion, we have made this examination of the two cases and reach the conclusion that the original opinion correctly affirmed the judgment of the trial court. *Page 390
The motion for rehearing is overruled.