Crum v. State

| Miss. | Oct 15, 1886

Cooper, C. J.,

delivered the opinion of the court.

It appears in evidence that the appellant on the fourth day of July, 1884, shot one Ford, inflicting upon him a very dangerous wound. Ford was treated by a physician for some days and discharged with a warning from the physician that his condition required great prudence on his part. Ford was imprudent, and on the 2d of September died from inflammation of the bladder, which, the attending physician states, was shown by a post-mortem examination to have been a result of the wound.

On the trial, the court, at the instance of the State’s attorney, gave two charges (the first and third), to which exception was taken by the accused. It is only necessary to state the third instruction, since that announced the law more strongly against the defendant, than the first. It is 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 dies, this will not excuse the party who gave it, but he will be held guilty of murder, unless it clearly and certainly appears, either by the evidence offered on the behalf of the State or the defendant, that the deceased’s own neglect and want of care, 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.”

In McBeth v. The State, 50 Miss. 81" court="Miss." date_filed="1874-04-15" href="https://app.midpage.ai/document/mcbeth-v-state-7984393?utm_source=webapp" opinion_id="7984393">50 Miss. 81, an instruction practically the same as the one here given, in the view in which it was considered by the court, was declared to be erroneous.

In that case the facts as given by the court were, that a dangerous but not necessarily fatal wound in the abdomen had been inflicted, the cut penetrating so deep that the entrails protruded. One Patrick, not a physician, had administered chloroform, replaced the bowels, and sewed up the wound. The physician who subsequently attended the wounded man testified that Patrick’s treatment was not good, saying that the wounded man died about sixty hours after the wound was inflicted, as he supposed, from inflammation of the bowels; that in his opinion death was caused by the wound, and that wounds in the abdomen were dangerous but not necessarily fatal.

On these facts the court said : “ If there be misgovernment on the part of the medical attendant, from ignorance or inattention, this would form no exculpation if the wound was mortal. Arch. Or. Prac. and Plead. 262. But if the wound were merely dangerous and the bad treatment the proximate and immediate cause of the death, the result would be different.”

For the proposition that for a dangerous wound resulting in death from mismanagement, the party inflicting could not be held liable for murder, no authority is cited either by the court or by counsel in that case. Nor has counsel in his brief in the case now before us cited one, nor has our own investigation discovered that there are any. On the contrary, the decisions seem to be uniform and numerous in support of the instruction given by the court ■below, which is almost a literal copy of the law as given by Green-leaf on Evidence, vol. 8, § 139.

We have examined many of the cases cited by Greenleaf in support of the text, and others may be found in Roscoe’s Cr. Ev. 717, 718, and 719. As we have said, they support the instruction given in this case, and so far as we are advised are in conflict with no other case than that of McBeth v. The State. The principle of these cases is that one who maliciously inflicts a serious injury upon another, from which injury, as the mediate but not immediate cause, he dies, is responsible for the death. It is a salutary rule, necessary for the protection of society by the punishment of offenders, and ought not to be departed from. McBeth v. The State is overruled in so far as it announces a different rule, and the judgment of the lower court is affirmed.