dissenting:
I agree with the principles of law enunciated by the majority opinion in this matter, but I feel that they have incorrectly applied the law to the facts in question. As the majority opinion points out, it is well established in this jurisdiction that a layman may testify as to the cause of death when the *17facts in evidence are such that every person of average intelligence would know from his own experience or knowledge that the wounds were mortal in character. The majority further states that the wound in this matter was not of such character, but they nevertheless feel that the matter should be submitted to the jury, relying on the case of State v. Thompson, 3 N.C. App. 193, 164 S.E. 2d 402 (1968). In the Thompson case the deceased was a healthy man about 40 years of age, standing six feet tall and weighing approximately 180 pounds. He was shot in the chest at close range with a 32 caliber pistol by the defendant. He was immediately taken to the hospital and was pronounced dead on arrival five minutes after the shooting. In that case, of course, expert witnesses would not be needed to establish the cause of the death.
The evidence presented by the State in the instant matter is much less compelling than that of the Thompson case. Only two witnesses testified for the State. The first witness, Alma Mae McKenzie, lived with the deceased and was present when the fight took place preceding the death. She testified, “He looked, his eyes had fell, the pipe had hit him. His eyes had fell out of their place.” I suspect that this was a colloquial expression, not to be taken literally. In any event the deputy sheriff who testified next made no mention of the eyes bulging or protruding. His testimony merely corroborated that of Alma Mae McKenzie relating to the affray and added no new facts concerning the death. He did witness the body shortly after the death and made pictures of the body which were introduced into evidence. A motion for nonsuit was made at the close of the State’s evidence but was overruled.
The only witness for the defense was Dr. C. Harold Steffee, a physician specializing in pathology. He testified that he had been a physician for 24 years and was the medical examiner for Moore County. He testified that the injury on the head of the deceased was a triangular cut or laceration, about an inch in each limb of the triangle, and of the order of an eighth of an inch in depth. He prepared several reports concerning the death of Baxter McKenzie. When he first viewed the body, he formed a preliminary opinion that the death may have been caused by a cerebral hemorrhage or blunt trauma to the head. This opinion was based on a superficial examination. An autopsy was performed as was customarily done when the death was of a suspicious nature. The autopsy revealed no evidence of skull *18fracture. Neither was there any evidence of bleeding inside of the brain. The deceased had some bleeding in the intestinal tract, the origin of which was not immediately apparent. A later miscroscopic study proved that he actually had beginning death of a part of his intestinal tract. The cause of the death was determined to be a severe degree of hardening of the arteries. The deceased had hardening of the arteries of one of the two main branches of the left artery and the entire right. They had calcium in them as well as being markedly thickened. The doctor stated that after conducting the autopsy, he formed an opinion that the cause of death was, in lay terms, hardening of the arteries of the heart. He further stated, “I found no relation between the blow to the head and the death of Baxter McKenzie.” He explained that his preliminary diagnosis of blunt trauma or cerebral hemorrhage was based on his initial observations of the body and was made before the autopsy was performed. Following the autopsy he gave the opinion heretofore stated. He testified that an autopsy is customarily performed when foul play is suspected.
It should be further noted that the statement relied on by the majority, “It is possible that the increased cardiac demand occasioned by an altercation might have precipitated death,” was not introduced as substantive evidence. The witness stated on cross examination that he had used those words in the final autopsy report. He did not testify on the witness stand that this was a fact; and the final autopsy report, which was in possession of the State, was not introduced into evidence. This statement was not admissible as substantive evidence, but it should have been restricted to a prior inconsistent statement if admissible for any purpose. It should also be noted that defense counsel subsequently made a motion for a mistrial because of the reading by the solicitor of this portion of the final autopsy. Defense counsel stated that the statement “It is possible that the increased cardiac demand occasioned by an altercation might have precipitated death,” was followed by a comma and the restrictive clause, “But this is entirely conjecture.” While we do not have the final autopsy report in the record, this illustrates the danger of considering the prior statement as substantive evidence. We are unable to determine if the charge to the jury restricted this statement to a prior inconsistent statement, as the judge’s charge to the jury is not included in the record.
*19On rebuttal, the State introduced into evidence two preliminary reports of the medical examiner. They showed that the injury in question occurred at 9:29 a.m. and that death occurred at 10:10 a.m. The 41 minute time lapse between injury and death further compels medical testimony to establish the cause of death.
The defendant renewed his motion for nonsuit at the conclusion of all the evidence. A thorough discussion of the law pertaining to this factual situation, as well as the reasons for the law, can be found in the case of State v. Minton, 234 N.C. 716, 68 S.E. 2d 844 (1952). There Justice Ervin stated at pages 721 and 722:
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. (Citations omitted.) 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.
Justice Ervin further held at page 722:
In passing from this phase of the appeal, we indulge the observation that good legal craftsmanship 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.
If we concede that the rules of evidence must be realistic as far as establishing the cause of death is concerned, I feel that it is not reasonable to submit this matter to the jury when the undisputed medical evidence shows that the cause of death was hardening of the arteries and was not caused by the blow to the head of the deceased. Not only has the State failed entirely in its burden of proof, the defendant, carrying the bur*20den improperly cast upon him, has proved to the contrary. I further note in passing that the “good legal craftsmanship” and the “search for truth” referred to by Justice Ervin were certainly not present in the instant case where the State’s examiner was present and available to testify, but was not called to do so by the State. Apparently, the autopsy and medical reports were also in possession of the State. In fact, this case clearly illustrates the necessity for medical testimony when the cause of death is not readily apparent.