State v. . Hambright

Bukwell, J.: We have carefully considered the record in this case, with the assistance of the argument and br'ef of the prisoners’s counsel, and^find no error. In Baker’s case (1 Jones 267) it is decided that,- when the wound is adequate and calculated to produce death, it will be no excuse to show that had proper caution and attention *713 been given, a recovery might have been effected. Neglect or maltreatment will not excuse, except in cases in which doubt exists as to the character of the wound. In that case the testimony of the physician was that the wound was a mortal one, and that the deceased died from its effects. .“He could not say whether or not, under skilful treatment, he would have recovered ; worse cases are reported as having been cured by treatment.” Hence it was not, according to the physician’s statement in that case, a wound necessarily mortal, but one “ calculated and adequate to produce death,” and in that sense a mortal wound, of which the deceased died. The testimony in the case before us is that the wound inflicted on the deceased by the prisoner, as the jury have found, was “calculated and adequate to produce death.” One physician (Dr. D. S. Ramseur) testified that it was a mortal wound, and that deceased died of it. The other physician stated that when he first saw the deceased, soon after the wounding, he told him “ that there was no chance for him except amputation or resectioning.” He further stated that “ a gun-shot wound like that would likely produce death,” and added that he could not say certainly that the wound was mortal. It appears, therefore, that all the testimony on the trial was to the effect that the wound of the deceased was “adequate and calculated to produce death.” The theory of the defence was that the death of the deceased was caused immediately by his being carried to Blacksburg while suffering from the shock of the wound ; and it was insisted that if this removal to Blacksburg, which was the voluntary act of the deceased, so aggravated the effect of the wound as to cause it to produce death, while if no .such removal had occurred, and proper treatment had been bestowed, he would have recovered, this defendant would not be guilty, for the law would attribute the death; *714 as it was contended, not to the remote act of the defendant, but to that which was the more immediate cause, to-wit, his voluntary exposure of himself to fatigue and worry while still under the first effects of the wound. , It is true that if one man inflicts a mortal wound, of which the victim is languishing, and then a second kills the deceased by an independent act, the first cannot be said to have killed. State v. Scates, 5 Jones, 420 cited by defendant’s counsel. It is also true, that if injuries are inflicted on a person which are not sufficient of themselves to cause death, and the injured person voluntarily, and of his own accord, so exposes himself as to produce death, the one who inflicted the injuries is not guilty of the killing, even if the infliction of the injuries was the motive for the voluntary exposure. State v. Preslar, 3 Jones, 421, cited by defendant’s counsel. But it is not true that it' a wound be inflicted which is “adequate and calculated to produce death,” and death ensues as the result of the wound, the person, who inflicted the wound can exonerate himself by showing that some conduct of the wounded man, or his attendants, lessened the chances of his surviving his injuries, and thus caused the death. Baker’s caye, supra. Hence, if it be conceded that the removal of the deceased from Shelby to Blacksburg, at his own request (a harmless act in itself), caused the wound — a dangerous one — to produce death,'the dying is by the law attributed to the wound, and the guilt is imputed to him who inflicted it. His Honor, therefore, properly refused the instructions asked for by defendant’s counsel. There was no evidence of any intervening cause to which the death could be attributed under the rules of law as laid down in Baker’s case, supra. The charge given to the jury by his Honor was not excepted to. It was certainly a fair exposition of the law applicable to the facts of the case. *715 The exception of the defendant that his Honor failed “ in the supplementary instructions” to charge the jury “that if another cause than the wound intervened and produced the death of the deceased, the defendant would not be guilty of murder,” is untenable, for the reason that, as above stated, there was no evidence of any intervening agency which the law would recognize as the cause of the death. No Error. Affirmed.