, the Supreme Court said that assault-battery and homicide were two distinct offenses even if they arose out of the same incident. While both offenses contained several similar elements, in order to convict the defendant of homicide, the state had to prove the additional element of the death of the victim. In fact, this was the principal element of the offense. The state did not attempt to do this at the first trial because the victim had not yet died. Gabriel Diaz v. United States, 223 U.S. 442, 448-49 (1911).
There are several Texas cases which have reached the same conclusion. The earliest of these cases was decided in 1886. In that case, the defendant accidentally shot the victim while celebrating Christmas 1885. The defendant was convicted of aggravated assault in January 1886; the victim died from kidney disease which resulted from his wounds in April 1886; the defendant was then tried for and convicted of second degree murder in July 1886. The Texas Court of Appeals held that a conviction for assault cannot bar an indictment for murder if the victim is still alive at the time of the assault conviction. The court cited the reasoning of a Scottish court, where the judge said that the crime of murder does not exist until the victim dies. As a result, a defendant convicted of assault can later be tried and convicted of murder if the victim dies after the assault conviction. The death of the victim creates a new crime. Curtis v. State, 3 S.W. 86, 87-88 (Tx. Ct of App. 1886).
In another Texas case, the defendant pled guilty to assault with intent to murder and was convicted of this offense before the victim died. The defendant admitted to having poured gasoline over his wife and setting her ablaze. His wife died after the this guilty plea and conviction. The state then charged him with first degree murder, convicted him, and obtained a death sentence. The court cited the previous cases in stating that there is n...