State v. Thompson

Campbell, J.

We are presented with the following as stated in the appellant’s brief:

“It is appellant’s contention that in this case the State has offered evidence tending to show that deceased was shot with a pistol in the hands of appellant, that the bullet entered the body of deceased at a point six inches below the left armpit and to the rear of the center of the left arm, that deceased spoke only briefly immediately after the shot, that deceased was removed to a hospital where he was observed to be dead some several minutes after the shot; and that there is a total lack of evidence as to the proximate cause of death other than the above circumstances.
Thus, appellant contends that his motion for directed verdict of not guilty entered at the close of the State’s evidence should have been granted.
So, also, does appellant contend his motion for directed verdict of not guilty entered at the close of all the evidence should have been granted. The only additional testimony elicited from appellant bearing on the question here argued was his testimony that deceased died ‘within five minutes or so of the time he was shot.’ ”

Had the defendant rested at the close of the State's case, he would have been entitled to have his motion for a directed verdict considered solely upon the State’s evidence. Since, however, the defendant offered evidence, we must consider all of the evidence, including that offered by the defendant.

There was no expert testimony showing any causal relation *196between the bullet wound and the death. In State v. Minton, 234 N.C. 716, 68 S.E. 2d 844, Ervin, J., stated:

“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 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.”

While the cause of death can be proven without the necessity of an autopsy or the opinion of a physician or other expert witness, nevertheless, we again call attention to the observation of Ervin, J., in State v. Minton, supra. . . (C)raftsmanship will undoubtedly prompt solicitors to offer expert medical testimony as to the cause of death in all prosecutions for unlawful homicide where such testimony is available.” See also State v. Howard, 274 N.C. 186, 162 S.E. 2d 495.'

We hold that the evidence, including the shot fired by the defendant, the location of the- bullet .wound and the circumstances surrounding, the death shortly thereafter, afford such causal relation between the shooting and the death as to withstand the motion of the defendant for a directed verdict and to require submission to the jury under proper instruction for. a finding of fact as to the cause of death.

Affirmed.

Mallard, C.J., and MORRIS, J., concur.