STATE of North Carolina
v.
James Ellis LUTHER.
No. 73.
Supreme Court of North Carolina.
July 1, 1974.*240 Atty. Gen. Robert Morgan and Associate Atty. C. Diederich Heidgerd, Raleigh, for the State.
Seawell, Pollock, Fullenwider, Van Camp & Robbins, P. Wayne Robbins, Southern Pines, for defendant appellant.
SHARP, Justice:
Defendant's appeal presents one question: Considering all the evidence favorable to the State as true, is it sufficient to establish a causal relation between McKenzie's death and the assault which defendant made upon him with the iron pipe? G.S. §§ 15-173, 15-173.1 (1973 Cum. Supp.).
A person is criminally responsible for a homicide only if his act caused or directly contributed to the death. 40 Am. Jur.2d, Homicide §§ 13, 15 (1968); State v. Horner, 248 N.C. 342, 103 S.E.2d 694 (1958). Defendant argues that his motion *241 for nonsuit should have been allowed because (1) the State did not offer any substantial evidence from either lay or expert witnesses tending to establish the cause of McKenzie's death; and (2) defendant's witness, Moore County's Medical Examiner, an expert pathologist, testified that his autopsy revealed no relation between defendant's assault and McKenzie's death and, in his opinion, the cause of death was hardening of the arteries.
The rule with reference to the necessity for expert medical testimony to show the cause of death in prosecutions for homicide was stated by Justice Ervin in State v. Minton, 234 N.C. 716, 721-722, 68 S.E.2d 844, 848 (1951): "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 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. . . . There is no proper foundation, however, for a finding by the jury as to the cause of death without expert medical testimony where the cause of death is obscure and an average layman could have no well grounded opinion as to the cause. [Citations omitted.]" See State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968); State v. Knight, 247 N.C. 754, 102 S.E.2d 259 (1958).
The State's evidence in this case is sufficient to support the following findings: Prior to his attack of influenza McKenzie had worked every day as a printer at the Moore County News. On 17 February 1973 he was at home, weak but recovering. Defendant came to his home but was not admitted. An argument ensued and McKenzie ordered defendant to leave. Defendant told him not to come out into the yard or he would kill him. Notwithstanding the threat, McKenzie walked off the porch and hit defendant on the arm with his wife's rubber boot. Whereupon defendant hit him with an iron pipe. He "reared back on him three or four times and knocked his eyeballs out of his head.. . . His eyes fell out of their place." The blows felled McKenzie to the ground. His wife, who saw it all, went to him instantly. He was not breathing. A neighbor who heard her screams came immediately, but McKenzie "was already gone."
In our view, from the foregoing facts, any person of average intelligence would know from his own experience or knowledge that the assault which defendant made upon McKenzie caused or directly contributed to his death. McKenzie was very much alive before defendant felled him with blows from the iron pipeblows so forceful that they not only struck him to the ground but also caused his eyes to bulge out of place in their sockets. Seconds thereafter McKenzie was not breathing. He had gone.
The fact that the autopsy revealed hardening of the arteries of the heart and no traumatic injury sufficient to cause death does not exonerate defendant. In his final autopsy report defendant's witness, Dr. Steffee, stated that "the increased cardiac demand occasioned by an altercation might have precipitated death." The law declares "that one who inflicts an injury on another and thereby accelerates his death shall be held criminally responsible therefor." 40 Am.Jur.2d Homicide § 16 (1968). See also, 4 Strong, N.C.Index 2d, Homicide § 1 (1968).
Thus, if McKenzie's death came about as a result of the conjunction of his heart disease with either the violence or the excitement and shock of defendant's assault it was still brought about by defendant's unlawful act, for the consequences of which he would be answerable. Annot., 47 A.L.R. 2d 1072, 1077 (1956). The rule is well settled that the consequences of an assault which is the efficient cause of the death of another are not excused, nor is the criminal responsibility for causing death lessened, by the preexisting *242 physical condition which made the person killed unable to withstand the shock of the assault and without which predisposed condition the blow would not have been fatal. 40 Am.Jur.2d, Homicide § 20 (1968). See State v. Knight, supra.
From the evidence in this case it was permissible and reasonable for the jury to draw the inference that McKenzie would not have died but for defendant's unlawful assault and battery upon him. The motion for judgment of nonsuit was properly overruled.
The decision of the Court of Appeals is
Affirmed.
HIGGINS, Justice (dissenting).
The evidence is fairly stated in the opinion of the Court except in one particular. The death certificate filed by the physician quoted in the opinion was made on the basis of the doctor's preliminary examination and before the autopsy.
Fairly construed, the evidence shows the deceased advanced to the attack and struck the first blow. True, the State's witness stated the blow struck by the defendant with the pipe "knocked his eyeballs out of his head." The autopsy examination failed to disclose any injuries to the eyes, skull or brain and that death resulted from hardening of the arteries.
The poor old woman testified: "My husband (deceased) jumped up and grabbed a rubber boot and ran outside. He hit Ellis Luther on the arm with that boot and then fell to the ground . . ." After identifying the piece of pipe the defendant used, the witness said "There are a million down there (the yard where the trouble occurred) just like it . . . Prior to being struck. . . . Baxter previously was sick with flu and he was weak. He had heart trouble."
The State's evidence, in my opinion, was insufficient to go to the jury and sustain a finding that death resulted as a result of the defendant's wrongful act. The case of State v. Horner, 248 N.C. 342, 103 S.E.2d 694, tends to support the court's decision in this case. In Horner, I thought at the time it was heard that the evidence was insufficient to support a finding of death by a wrongful act. For that reason I dissented and for the same reason I dissent now.