
    McMILLIAN v. STATE.
    (No. 7143.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1922.)
    1. Criminal law <&wkey;486 — Opinion based on X-ray photograph, not shown to be correct, held incompetent.
    Where the doctor who toot an X-ray photograph of an injury was not a witness, and the photograph was not shown to have been properly taken and developed, another physician’s opinion as to the extent of the injury, based on this photograph, was incompetent.
    2. Criminal law <&wkey;>444 — X-ray photographs admissible after proof of their correctness.
    X-ray photographs are admissible in evidence only after proof of their correctness.
    Appeal from District Court, Callahan County; Geo. L. Davenport, Judge.
    Wit McMillian was convicted of assault with intent to murder, and he appeals.
    Reversed.
    Otis Bowyer, of Baird, and J. F. Cunningham, of Abilene, for. appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of three years. The alleged injured party was C. S. Boyles. We have examined the evidence, and, without rehearsing it, deem it quite sufficient to support the verdict.

There was evidence that Boyles, while sitting on the running board of an automobile and talking to a friend, was attacked by the appellant, who struck him several licks, holding some object in his hand which inflicted upon Boyles wounds which were serious. The appellant used expressions at the time justifying the conclusion that he was actuated ■ by express malice. He makes no defense against the assault, but sought to mitigate the consequences by testimony that he was intoxicated át the time, and that he used no weapon other than his fist.

Complaint is made of the admission in evidence of a part of the testimony of Dr. Locker. This witness was a physician residing iñ Brownwood, where Boyles was taken after the injury. Dr. Locker examined the injuries, and the evidence showed him to be qualified to give an opinion concerning them. He described their character and stated that he regarded them serious. Thus far we understand hiS testimony was not made the subject of objection. It seems that on the trial there was used an X-ray photograph, apparently made by Dr. Powell, who was not a witness, and with the making of which it affirmatively appears that Dr. Locker was not connected. The part objected to was:

“In my opinion it was a dangerous wound. From the X-ray standpoint,, the wound showed an inflammatory dr serious exudate or falling in on the brain. From the X-ray photograph, which I examined, I found the wound to be a serious and dangerous wound. The wound which I found there might produce death.”

The objection urged is that the opinion, based upon an X-ray examination, was not competent evidence, for the reason that the X-ray photograph was not taken by the witness, and was not shown by any testimony to have been properly taken or properly developed.

The use of X-ray photographs is permitted in evidence, but not in the absence of proof of their correctness. See Wharton’s Crim. Ev. vol. 2, p. 1083, § 518k. In this respect they stand upon much the same basis with other photographs. See Wharton’s Crim. Ev. § 5181. On the subject, see, also, Bruce v. Beall, 99 Tenn. 303, 41 S. W. 445; Amer. Digest, Decennial Ed. vol. 8, Evidence, § 359 (4).

The basis of the opinion in the instant case was an X-ray photograph, not proven to accurately portray the condition of the wound upon the head of the injured party. The opinion expressed upon the information obtained from this photograph was important in magnifying the penalty, in that it showed what the jury must have understood to be a very serious condition of the brain; occasioned by the wound. The penalty assessed was above the minimum. The evidence complained of we cannot regard as other than illegal and harmful.

Because of it, we are constrained to order a reversal of the judgment, which is accordingly done. 
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