OPINION.
Cockeill, C. J. 1. Homicide: Judicial cause of death. It is most probable from the testimony that Cauthron died from pneumonia or congestión of the lung caused by the wound inflicted by the laht, or so aggravated by it as to hasten death. In either event the wound should be regarded as the juridical •cause of death and the prisoner held to the consequences. Key v. State, 28 Ark., 155; 1 Hale Pl. C., 428; 1 Whart. Cr. L., sec. 159.
This principle is also deducible from the cases — that •one who maliciously inflicts a serious wound upon another frem which as the mediate but not immediate •cause he dies, is responsible for the death. Crum v. State, 1 So. Rep., 1.
2. Same: Same: instructions. But in determining whether the court ought or ought not to have instructed the jury on the question of a low•er offense included in the greater charge, we look to the record only to see if there is any testimony to base it on. Pagg v. State, ante, 506. We do not stop to weigh it, •and thus try to- ascertain what effect, if any, it might have had with the jury. Where the defendant is shown to have inflicted a malicious wound and the proof shows x . that death ensues from it, and he seeks to evade the consequences by showing that his act was not the cause, nor the cause of the cause, of death, the evidence should be very plain to warrant the j ury in agreeing to his version. But if there is any evidence to sustain his theory, it must be submitted to the jury under proper instruc-: tions from the court. The court has no discretion to withhold instructions appropriate to any theory of the cause sustained by competent evidence.
3. Same: Same Now we cannot say there was not some evidence, even3, though we may regard it as less than a jury ought, in conscience, to hang a verdict on, to the effect that the wound was not the juridical cause of death. Dr, James* testimony .casts a doubt, a slight one. it. may be, as to whether. the wound either caused or aggravated pneumonia. One of the attending surgeons was jointly indicted with the defendant for waylaying.and' shooting the deceased, and. the proof tended to show his guilt, and that he committed the act to aid in getting .the property of the deceased. He was not suspected of complicity in the offense when called in by the deceased. Some suspicion was cast upon his conduct in his method of treating the wound, and the patient died suddenly almost under his operation of probing the wound, though he was in fair strength when it began. No one testified directly as to the cause of death, but the jury were left to their common knowledge and experience to draw' conclusions from what they had heard.. How can we say that they might not have concluded that the prisoner was guilty of the shooting, but that death did not follow as the result of that act, if the court had submitted the question to therñ ?
The case of Bush v. Com., 78 Ky., 268" date_filed="1880-02-03" court="Ky. Ct. App." case_name="Bush v. Commonwealth">78 Ky., 268 is one in which the court reversed a judgment of conviction because of' the refusal of the trial court to instruct the jhry that théy might, under circumstances somewhat like those here presented,'find the prisoner guilty of willfully and maliciously shooting and wounding the accused. See too, Davis v. State, 45 Ark., 464.
' For the' error indicated the judgment is reversed' and the cause remanded for a new trial.