The unlawful infliction of a wound upon the person of another which is not dangerous in itself, and death results from improper treatment or carelessness, then the person inflicting the wound is not chargeable with murder. On the other hand, if the wound is a dangerous one, calculated to endanger and destroy life, and death ensues therefrom within a year and a day, the offender may be convicted of murder or manslaughter according to the circumstances of the case, although it may appear that the wounded person might have recovered by proper and skillful treatment, and although it may appear that a surgical operation was the immediate cause of death.47

43 Russell vs. State, 38 Tex. Cr., 590. 44 4 Blackstone, 30; Arp vs. State, 97 Ala. 5. 45 Queen vs.'Dudley, L. R. 4, Q. B.

D., 273; same case 5 Am. C. R., 559. 46 3 Greenl. Ev., Sec. 142; Adams vs. P., 109 111., 49.

At common law the penalty for murder is death; and it is provided by statute in many of the states that death shall be the penalty for murder in the first degree.