State v. Perry

204 S.E.2d 916 (1974)

21 N.C. App. 528

STATE of North Carolina v. James PERRY, Jr.

No. 749SC285.

Court of Appeals of North Carolina.

May 15, 1974.

*917 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.

Watkins, Edmundson & Wilkinson by C. W. Wilkinson, Jr., Oxford, for defendant appellant.

CAMPBELL, Judge.

Defendant assigns as error the failure of the trial court to grant his motion for judgment as of nonsuit because the State failed adequately to prove cause of death or that the actions of defendant were the proximate causes of death. There were two eyewitnesses to the shooting. The Granville County Medical Examiner testified as to the wound in deceased's abdomen just before the following exchange occurred:

"Q. Do you have an opinion as to what type weapon caused this wound? A. It appeared to be a shotgun wound. Q. Do you have an opinion based upon your medical facts as to the cause of death of John Hobgood? A. Internal injuries caused by this shotgun wound appeared to be the cause of death."

The defendant objects to the use of the word "appeared" and contends that this shows uncertainty as to the cause of death and that therefore his motion for judgment as of nonsuit should have been granted. Defendant's argument is solely one of semantics and is without merit. In addition to the medical examiner's testimony was the testimony of two eyewitnesses to the shooting. Where the evidence is such that every person of average intelligence would know from his own experience or knowledge that the wound was mortal in character, it is not even necessary to have expert medical testimony to prove cause of death. State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952).

Defendant also contends that the trial court erred in failing to charge on the lesser included offense of voluntary manslaughter in that a gun was found in the deceased's pocket and defendant may have thought deceased was going for the gun. There was no evidence that either of the two eyewitnesses or the defendant knew the deceased had a gun on his person or that the deceased made a move to go to his pocket. Where there is evidence only of the greater offense and no evidence which would support a verdict of the lesser offense, then the trial court is not required to instruct the jury on the lesser degrees of the crime charged. 3 Strong, N.C. Index 2d, Criminal Law, § 115, p. 21 (1967).

We find no error.

No error.

Judges MORRIS and VAUGHN, JJ., concur.