State v. ColeAnnotate this Case
154 S.E.2d 506 (1967)
270 N.C. 382
STATE v. Dallas COLE.
Supreme Court of North Carolina.
May 24, 1967.
*509 Nivens & Brown, by W. B. Nivens, Charlotte, for defendant appellant.
T. W. Bruton, Atty. Gen., and Wilson B. Partin, Jr., Staff Atty., for the State.
The defendant assigns a number of errors, one group of which is to testimony regarding the cause of death, the remainder constituting exceptions to the charge. Dr. W. M. Summerville, County Coroner, and an admitted medical expert, testified: "I performed a complete autopsy on the deceased to determine the cause of his death. I cut into the chest and then into the abdomen and removed all organsfor examination * * * there was a long incision extending from the end of the breast bone almost to the pelvis. There was a stab wound or surgical wound * * * There was a stab wound in the right-hand side." At this point, the jury retired, and the doctor was further examined. Upon its return, he was asked: "Do you have an opinion satisfactory to yourself, if the jury should find by the evidence and beyond a reasonable doubt, that Homer Anderson was stabbed in the right side, as to whether or not this was likely to have produced his death? Answer: I do. Question: What is your opinion? Answer: It could have produced his death."
The defendant objected to both questions and answers, and took exception thereto.
While the form of the first question and the answer to the last one is not in preferred form, we have previously held that a statement by a witness that a particular result could have occurred upon the hypothetical facts is competent.
In Schafer v. Southern Railway Co., 266 N.C. 285, 145 S.E.2d 887, Lake, J., speaking for the Court, said:"When an expert is testifying as to his opinion, concerning the cause of an event which he did not observe, the proper form of question is one which states, hypothetically, premises as to which there is evidence already in the record. The question should then call for the opinion of the expert as to whether the facts so supposed could have caused the condition in question, rather than calling for the witness' conclusion as to what actually did cause it. Perfecting Service Co. v. Product Development & Sales Co., supra (259 N.C. 400, 131 S.E.2d 9); Patrick v. Treadwell, supra (222 N.C. 1, 21 S.E.2d 818); Summerlin v. Carolina & N.W. R. R., 133 N.C. 550, 551, 45 S.E. 898; Stansbury, North Carolina Evidence, § 137."
In State v. Minton, 234 N.C. 716, 68 S.E.2d 844, Ervin, J., speaking for the Court, said:"The State did not undertake to show any causal relation between the wound and the death by a medical expert. For this reason, the question arises whether the cause of death may be established in a prosecution for unlawful homicide without the use of expert medical testimony. The law is realistic when it fashions rules of evidence for use in the search for truth. The cause of death may be established in a prosecution for unlawful *510 homicide without the use of expert medical testimony where the facts in evidence are such that every person of average intelligence would know from his own experience or knowledge that the wound was mortal in character. Waller v. People, 209 Ill. 284, 70 N.E. 681; State v. Rounds, 104 Vt. 442, 160 A. 249. See, also, in this connection: State v. Peterson, supra (225 N.C. 540, 35 S.E.2d 645); State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; State v. Johnson, supra (193 N.C. 701, 138 S.E. 19); Brundage v. State, 70 Ga.App. 696, 29 S.E.2d 316; James v. State, 67 Ga.App. 300, 20 S.E.2d 87; Brown v. State, 10 Ga.App. 216, 73 S.E. 33; Commonwealth v. Sullivan, 285 Ky. 477, 148 S.W.2d 343; People v. Jackzo, 206 Mich. 183, 172 N.W. 557; Franklin v. State, 180 Tenn. 41, 171 S.W.2d 281; Mayfield v. State, 101 Tenn. 673, 49 S.W. 742; Lemons v. State, 97 Tenn. 560, 37 S.W. 552; McMillan v. State, 73 Tex. Cr.R. 343, 165 S.W. 576; State v. Bozovich, 145 Wash. 227, 259 P. 395."
The evidence in this case brings it within the rule of the Minton case. The State's evidence tended to show that when the wife of the deceased went to the railroad track and found him, that he was stabbed in the stomach with a piece of his liver plugged out, and was bleeding from his right side. He was taken to the hospital, operated on that day, and put under oxygen. "He had two operations because they had to bore a hole in his stomach and put a tube in and had to operate in the emergency room that Sunday * * * He was not able to walk he was paralyzed. He couldn't move no kind of way. He could not raise his hands uphe was paralyzed. He couldn't even move because wherever they laid him he had to lay there * * * Homer went into a coma that Monday night. I (his wife) stayed there until 10:30, when I left Memorial Hospital that night, he was not in a coma. When I got home to go back Tuesday they call and told me that he had done went back in a coma * * * He went into a coma that Monday night, and he did not come out of that coma."
From the above evidence, it would seem that although the deceased lived for several weeks after receiving his injuries, he was in a dying coma. During that time, and from the nature of the wounds on his body, a "person of average intelligence would know from his own experience or knowledge that the wound was mortal in character."
The defendant has some eighteen exceptions to the charge of the Court but refers to only two of them in his brief. Under our rules, the others are deemed abandoned. State v. Strickland, 254 N.C. 658, 119 S.E.2d 781. However, they have been considered and are found to be without merit.
One of the exceptions noted in the brief is to that portion of the charge in which the Court defined manslaughter, both voluntary and involuntary. He complains that the Court defined involuntary manslaughter, but the instruction given was a correct one in defining both types of manslaughter, and we do not see that any substantial injustice was done to the defendant, even though the definition of involuntary manslaughter may not have been required. Another exception presented was to a further statement of the law of manslaughter in which the Court properly and fully dealt with anger and sudden passion as elements. A careful consideration of this exception discloses it was a correct and well expressed statement of the law of manslaughter.
The remaining exception discussed in the appellant's brief is that since the death of the deceased did not occur for some seven weeks following his injuries that the Court committed error in failing to charge the jury on "proximate cause," contending that he should have instructed the jury that before the defendant could be convicted of any degree of homicide, it would have to find beyond a reasonable *511 doubt that the injuries inflicted by the defendant were the proximate cause of the death of his antagonist. However, upon the State's evidence (1) that the defendant told Officer Mobley at the scene that he had stabbed Homer with a butcher knife; (2) the statement by the officer that the deceased was bloody in the lower right abdomen, that he found a stab wound at that time; (3) the statement by the wife of the deceased that he was bleeding from his right side where the stab was, that "he was stabbed and bloody and when they picked him up blood run out. He was stabbed in his stomach and a piece plugged out of his liver * * * The blood was coming from his right side, I looked at it, the cut place was pretty deep"; (4) other evidence relating to the two operations on the deceased; (5) the undisputed testimony that he went into a dying coma the day following the trouble, that he never regained consciousness after the second day, together with (6) Dr. Summerville's opinionall are sufficient to fully establish the cause of death."Where the cause of death is disputed and there is evidence tending to prove that deceased's death was due to some cause other than the injuries inflicted by accused, the court may and should instruct the jury fully and clearly on the issue as to the proximate cause of the death. The court may, and should, particularly if requested, instruct the jury to the effect that they cannot convict, or in other words that they must acquit, unless they are satisfied that decedent died from the injuries inflicted by accused and not from some other cause, such as from improper medical or surgical treatment of the injuries." 41 C.J.S. Homicide § 363. Also, "The view has been taken, however, that where, upon the undisputed facts, it clearly and conclusively appears to a moral certainty that the unlawful act complained of was the proximate cause of death, a failure so to charge, especially where there was no request so to charge, is not reversible error. An instruction as to an independent intervening cause is not proper in the absence of evidence to sustain it." 26 Am.Jur., Homicide, § 533.
There being "no evidence tending to prove that deceased's death was due to some cause other than injuries inflicted by the accused," an instruction on proximate cause was unnecessary, and especially when there was no request therefor. However, the Court did in several instances require that the jury find that the defendant had killed the deceased as a prerequisite to any verdict of guilty. In one place, as part of the instruction, the Court said, "If you find * * * that he cut and stabbed and killed the deceased * * * that he killed him intentionally, that he killed him with a deadly weapon * * *" In another section of the charge the Court said, "I instruct you that you should ask yourself these questions. Did the defendant cut and stab the deceased? Second: Did he kill him intentionally? Third: Did he kill him with a deadly weapon? If you find from the evidence and beyond a reasonable doubt or if you find from the admission of the defendant that the truth requires an affirmative answer to each of these questions; that is, that each and every one of these should be answered yes, then * * *" In still another portion of the charge, the Court instructed the jury that they should ask themselves the questions just above set forth, and at the conclusion of the charge told the jury that if they found "that the defendant stabbed the deceased * * * that he killed him intentionally, that he killed him in the heat of passion. * * *"
The foregoing excerpts from the charge established that the jury was fully informed that the injuries inflicted by the defendant must have caused the death of Homer Anderson before he could be convicted of any offense. In the trial below, there was