Sharp v. State

• Decision Date: 05 January 1889
• Citation: 10 S.W. 228,51 Ark. 147
• Parties: SHARP v. STATE
• Court: Arkansas Supreme Court

10 S.W. 228

51 Ark. 147

SHARP v. STATE

Supreme Court of Arkansas

January 5, 1889

APPEAL from Garland Circuit Court, J. B. WOOD, Judge.

Judgment reversed.

G. W Murphy, for appellant.

1. The instructions refused by the court stated a correct principle of the criminal law. Wharton Am. Cr. Law, 4th Rev. Ed., sec 568; 57 Ind. 80; 134 Mass. 215; 47 Am. Dec., 265; 36 Ga. 91; 1 Cr. Def., 125-6.

2. The question and reply of the judge was improper.

3. Reviews the evidence and contends that it is not sufficient to support the verdict. (The case was also argued orally.)

D. W Jones, Attorney General, for appellee.

Argued the case orally.

OPINION

BATTLE, J.

Appellant and Jasper Dunkin were jointly indicted for murder in the first degree; were jointly tried, and were convicted of murder in the second degree. They moved for a new trial. During the pendency of the motion Dunkin died. The motion was denied and Sharp appealed.

It is alleged in the indictment that the accused murdered Mike Martin by stabbing him with a knife. The evidence shows that Dunkin stabbed him, and that a physician was called in to treat his wound. Defendants introduced the testimony of experts for the purpose of proving that the wound was not mortal, and that the death of the deceased was caused by the maltreatment of the physician.

As to the responsibility for the death of Martin the court instructed the jury, over the objection of defendants, as follows: "When one willfully and unlawfully inflicts upon another a wound which is not within itself mortal, yet, if by improper treatment of such wound by the physician in charge, it becomes mortal, and the person so wounded dies from such wound and the erroneous treatment of the same by such physician, the person inflicting such wound is criminally responsible for the death." "If you find from the evidence in this case that the defendants inflicted upon Mike Martin a mortal or dangerous wound with a knife, and you also find that said wound was erroneously treated by the physician, and that said Martin died from said wound and such erroneous treatment of the same, you will find the defendants guilty of murder or manslaughter, according as the evidence may show."

Are these instructions erroneous? Chief Justice Bigelow, after a careful examination of the authorities upon this question in Com. v. Hackett, 2 Allen 141, said: "The well established rule of the common law would seem to be, that if the wound was a dangerous wound, that is, calculated to endanger or destroy life, and death ensued therefrom, it is sufficient proof of the offense of murder or manslaughter; and that the person who inflicted it is responsible, though it may appear that the deceased might have recovered if he had taken proper care of himself, or submitted to a surgical operation, or that unskillful or improper treatment aggravated the wound and contributed to the death, or that death was immediately caused by a surgical operation rendered necessary by the condition of the wound. 1 Russell on Crimes, 7th Amer. Ed., 505; Roscoe's Crim. Ev., 3rd Ed., 703, 706; 3 Greenl. Ev., sec. 139; Commonwealth v. Green, 1 Ashm. 289; Regina v. Haines, 2 Car. & Kir. 368; State v. Baker, 1 Jones Law R., N.C. 267; Commonwealth v. M'Pike, 3 Cush. 181. The principle on which this rule is founded is one of universal application, and lies at the, foundation of all our criminal jurisprudence. It is, that every person is to be held to contemplate and to be responsible for the natural consequences of his own acts. If a person inflicts a wound with a deadly weapon in such a manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality that other causes co-operated in producing the fatal result. Indeed, it may be said that neglect of the wound or its unskillful or improper treatment, which were of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible. But however this may be, it is certain that the rule of law, as stated in the authorities above cited, has its foundation in a wise and sound policy. A different doctrine would tend to give immunity to crime, and take away from human life a salutary and essential safeguard. Amid the conflicting theories of medical men, and the uncertainties attendant upon the treatment of bodily aliments and injuries, it would be easy in many cases of homicide to raise a doubt as to the immediate cause of death, and thereby to open a wide door by which persons guilty of the highest crime might escape conviction and punishment."

In Regina v. Holland, 2 Moody & R. 351, "it appeared by the evidence that the deceased had been waylaid and assaulted by the prisoner, and that, amongst other wounds, he was severely cut across one of his fingers by an iron instrument. On being brought to the infirmary, the surgeon urged him to submit to the amputation of the finger, telling him, unless it were amputated, he considered that his life would be in great hazard. The deceased refused to allow the finger to be amputated." At the end of two weeks lock-jaw followed as the result of the wound, and caused his death. It was held that the prisoner was guilty of murder.

Mr. Greenleaf, in his work on Evidence, says: "If death ensues from a wound, given in malice, but not in its nature mortal, but which, being neglected or mismanaged, the party died, this will not excuse the prisoner who gave it; but he will be held guilty of the murder, unless he can make it clearly and certainly appear that the maltreatment of the wound, or the medicine administered to the patient, or his own misconduct, 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."

Mr. Bishop, in his work on Criminal Law, says: "But, where the wound is not of itself mortal, and the party dies in consequence solely of the improper treatment, not at all of the wound, the result is otherwise. * * But we should not suffer these propositions to carry us too far; because, in law, if the person dies by the action of the wound, and the medical and surgical action, jointly, the wound must clearly be regarded sufficiently a cause of the death. And the wound need not be even the concurrent cause; much less need it be the next proximate one; for if it is the cause of the cause, no more is required." 2 Bishop on Criminal Law, 7th Ed., sec. 639; The State v. Morphy, 33 Iowa 270; Kee v. State, 28 Ark. 155; Smith v. State, 50 Ark. 545, 8 S.W. 941; Crum v. State, 26 Am. Law. Reg. 368.

The instructions were properly given.

The defendants asked and the court refused to give the following, and other instructions to the same effect, to the jury: "The right of self-defence is measured by the necessity, or what appears to be the necessity in the given case, and, therefore, if a person of great physical strength assaults a feeble one, without any manifest or apparent intent to kill him, but with much greater force and violence than he is able to resist by the mere use of his natural members, the person thus assaulted, may, if he has no other reasonable way or means of avoiding or averting the violence and injury, avail himself of any reasonable instrument or means of defence in his possession or within his reach, and, if while defending himself therewith against such assault and injury, and not in a spirit of revenge, ill-will, wantonness or recklessness, or for the purpose of unnecessarily injuring the assailant, he inflicts upon the assailant a wound or stab which is not mortal, but a person called as a surgeon by performing upon it an unwarranted operation renders it mortal, or makes an additional one which is mortal, and death results therefrom, he, the person assaulted, cannot be held criminally liable for the death or homicide."

The death of Dunkin makes it unnecessary for us to decide the question raised by this instruction. The evidence shows that appellant was present when deceased was stabbed, and prevented Dunkin from stabbing him the second time. He gave no active aid or assistance to Dunkin in the infliction of the wound. There was no positive evidence that he advised or encouraged it at the time it was done. The facts which implicated him, if any, preceded the conflict in which the wound was inflicted. In convicting him the jury must have concluded that there was an understanding between Dunkin and Sharp to do some unlawful act, and that Dunkin, when proceeding according to the common plan, inflicted the wound. Under this state of facts the instructions asked and refused could have been of no service to appellant.

All that is in them which could have been of any advantage to him was included in other instructions, which were given. For the court expressly told the jury, that they could not...