Appellant was tried, under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by striking one Charles Davis with a club and thereby inflicting a wound, as a result of which said Davis died within a year and a day. On the trial of the cause appellant was convicted of murder in the second degree.
It is admitted that appellant struck Davis twice over the head with a heavy hickory club, and that the blows were struck without legal justification.
It is also admitted that Davis died a few months after the blows were struck, but it is contended that his death'resulted from intervening causes, and not from the wounds inflicted by appellant.
The striking of the blows occurred at a mule-barn in the city of Nashville, in Howard County, where appellant’s father was engaged in the business of selling mules and horses, and the stick used by appellant was a heavy piece of hickory, about five and a half feet in length.
Appellant’s father was showing a pair of mules to a prospective customer, and Davis, being present at the time, was asked by the customer to examine the mouths of the mules to ascertain their ages. Appellant was standing near by with the club in his hand. When Davis examined the mules, a question was asked of appellant’s father concerning their age, and he made reply, stating the age. of the mules, and when Davis examined the mouth of each mule he indicated his opinion either by a nod or shake of his head. Appellant and his father both testified that Davis shook his head. The customer in question, Mr. Isgrig, testified that it appeared to him that Davis nodded his head and at the same time gave him a wink. At any rate, appellant’s 'father took umbrage at what he claimed was an interference by Davis with the negotiations with the prospective customer, and, according to the testimony of numerous witnesses, appellant’s father complained bitterly of such interference. He asked Davis, “What are you shaking your head about?” and remarked that he was getting damned tired of people meddling in his business; that Davis replied that he was not meddling, and about that time appellant walked up, and, without saying anything or being spoken to, struck Davis twice over the head, and felled him to the ground.
Davis was carried home in a semi-conscious condition, at times in a frenzy. He received surgical aid there at home, near Nashville, and was later carried to Texarkana and placed under the care of a surgeon there, where he was kept for some days, and thence taken to the State Hospital for Nervous Diseases at Little Rock.
The striking occurred on March 12, 1923, and Davis died at the hospital in Little Rock on April 30, 1923, having been brought to the hospital on April 4. The immediate cause of death was pneumonia, which developed about four days before his death.
. Testimony was adduced by the State tending to show that there was a fracture of Davis’ skull, from which he never fully recovered, and that his weakened condition was one of the causes of his death, together with the pneumonia which was contracted while he was at the hospital. Appellant introduced testimony of the physicians and others at the State Hospital tending to show that Davis was recovering at the time he contracted pneumonia — that he was convalescent at that time' — and that pneumonia intervened, and was the sole cause of his death.
Hypothetical questions were propounded to all of the witnesses who testified in the case, and the respective opinions given were not harmonious.
Appellant filed a motion for a change of venue on the statutory ground, and presented, in support of his petition, the affidavits of six citizens of the county. The prosecuting attorney examined these affiants under oath, in the presence of the court, for the purpose of having the court pass upon their credibility. After hearing the affiants testify orally, the court overruled the motion, and appellant saved his exceptions. We are of the opinion that the examination of the supporting affiants, as it appears in the record, was sufficient to justify the court in the finding that the affiants were not credible persons within the meaning* of the statute. Dewein v. State,
It is next contended that the court erred in permitting the prosecuting attorney to propound hypothetical questions to expert witnesses, in tbe form in which the questions were framed, on the ground that undisputed facts were omitted. There were three physicians introduced by the State to whom the hypothetical questions were propounded, and to which objection was made by appellant’s counsel. The questions, propounded to the several physicians were not identical in form, and appeared not to have been prepared in advance, but were orally propounded in language selected at the time by the questioner. In each instance, when the question was propounded, objection was made on the ground that the question did not contain all the undisputed facts, and the prosecuting attorney replied that his desire was to include all undisputed facts, and asked appellant’s counsel to point out any such fact that had been omitted,.but the counsel declined to point it out, stating that he was “not running a law school.” It was not disclosed at any time during the progress of the trial what particular fact was omitted from the hypothetical questions propounded by the prosecuting attorney, but it is now argued that the questions omitted the fact, said to be undisputed, that deceased was constantly improving after his admission to the hospital, and had practically recovered from the effects of the wound when he contracted pneumonia. Each of the hypothetical questions contained a recital that Davis had “good days and bad1 days” after being carried to the State Hospital, and was considered to be improving up to the time he contracted pneumonia. At the time these questions were propounded appellant had not introduced the testimony of the physicians at the State Hospital to show marked improvement in Davis’ condition, and the questions were based upon the testimony adduced by the State tending to show the condition of deceased from the time he was struck by appellant until Ms death. Of course, all of the undisputed facts then in evidence were essential parts of the hypothetical questions, otherwise it was erroneous to propound them; but the prosecuting attorney had the right to take the opinion of the expert witnesses upon such disputed issues of fact as lie conceived the testimony tended to sustain. Taylor v. McClintock,
There are numerous assignments of error with respect to the court’s charge and in refusing to give some of the instructions requested by appellant’s counsel, but we find no error in either of the rulings upon which these assignments are based. For instance, the objection to one instruction given at the instance of the State was that it was misleading, in that it failed to incorporate the idea of a specific intent to kill as an element of the' crime of murder in the first degree. The answer to that is that the jury did not find appellant guilty of murder in the first degree, and that degree of the offense was eliminated from the case. A specific intent to kill is not an essential element of the crime of murder in the second degree.
Finally, it is insisted that the evidence was not sufficient to sustain the verdict, in that it did not establish the fact that the death of Davis resulted from the blows inflicted by appellant. We are of the opinion that the extent of the injury resulting from the blows inflicted by appellant, as described by the witnesses, some of them attending surgeons, was sufficient to sustain the finding that the death of Davis resulted, in part, from the blows —that the wounds inflicted by the blows constituted a contributing cause of Davis’ death. The expert witnesses testified that the weakened condition of Davis, as the result of the wduncls inflicted, made him more susceptible to germ diseases and made him less able to withstand the effects of such illness. We have recognized this theory as a tenable one and sufficient basis for a finding that the original injury was the indirect cause of death. St. L. I. M. & S. Ry. Co. v. Hook,
So far as concerns the question of the responsibility of appellant, it is clear, from his own testimony, that the assault upon Davis was unlawful and unjustified, and without sufficient provocation. The jury could readily have found from the evidence that the striking was done with malice, and that the weapon used was such as was ordinarily calculated to produce death. Thus, all the elements of murder in the second degree are found in the testimony, and justify the verdict of the jury convicting him of that crime. Rosemond v. State,
Our conclusion, upon the whole case, is that the record is free from error, and this calls for affirmance. It is so ordered.