STATE of North Carolina
v.
Alford JONES.
No. 29.
Supreme Court of North Carolina.
June 17, 1976.*550 Leland M. Heath, Jr., Kinston, for defendant appellant.
Rufus L. Edmisten, Atty. Gen., Edwin M. Speas, Jr., Special Deputy Atty. Gen., Elizabeth C. Bunting, Associate Atty., Raleigh, for the State of North Carolina.
HUSKINS, Justice:
Defendant moved to quash the bill of indictment on the ground that G.S. 14-17 is unconstitutional. Denial of the motion constitutes his first assignment of error.
While the constitutionality of a statute under which a defendant is prosecuted may be challenged by a motion to quash, State v. Fredell, 283 N.C. 242, 195 S.E.2d 300 (1973); State v. Atlas, 283 N.C. 165, 195 S.E.2d 496 (1973), the motion in this case is merely an extension of the argument that the death *551 penalty constitutes cruel and unusual punishment proscribed by the Eighth Amendment to the Federal Constitution.
Article XI, section 2 of the Constitution of North Carolina reads as follows:
"The object of punishments being not only to satisfy justice, but also to reform the offender and thus prevent crime, murder, arson, burglary, and rape, and these only, may be punishable with death, if the General Assembly shall so enact."
G.S. 14-17 reads, in pertinent part, as follows:
"A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death."
Application of the felony-murder rule contained in the quoted enactment of the General Assembly supplants the necessity for proof of an intentional killing with malice after premeditation and deliberation. State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973). Thus a murder committed in the perpetration of, or attempt to perpetrate, a robbery is murder in the first degree and punishable by death. State v. Brower, N.C., 224 S.E.2d 551 (Filed May 14, 1976); State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974).
The constitutionality of G.S. 14-17 has been upheld by this Court in many recent decisions, including State v. Alford, 289 N.C. 372, 222 S.E.2d 222 (1976); State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975); State v. Robbins, 287 N.C. 483, 214 S.E.2d 756 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970). Unless further review is required by legislative enactment or by the Supreme Court of the United States, this assignment has been the subject of final judicial determination in this State.
Defendant contends the trial court erred by permitting articles of clothing worn by the deceased to be offered in evidence and passed among the members of the jury. Photographs of the victim's clothing had been previously admitted for illustrative purposes, and defendant argues admission of the articles themselves merely inflamed the jury against him. This constitutes defendant's second assignment of error.
This assignment is without merit. Articles of clothing worn by the victim at the time the crime was committed are competent evidence, and their admission has been approved in many decisions. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), cert, denied 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518 (1970); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), death sentence vacated 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); State v. Bass, 249 N.C. 209, 105 S.E.2d 645 (1958); State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949), cert, denied 340 U.S. 835, 71 S. Ct. 18, 95 L. Ed. 613 (1950); State v. Petry, 226 N.C. 78, 36 S.E.2d 653 (1946); State v. Wall, 205 N.C. 659, 172 S.E. 216 (1934); State v. Fleming, 202 N.C. 512, 163 S.E. 453 (1932); State v. Vann, 162 N.C. 534, 77 S.E. 295 (1913). See 1 Stansbury's North Carolina Evidence § 118 (Brandis Rev. 1973), and cases cited therein.
The fact that photographs of articles of clothing worn by the deceased on the night he was shot had been previously offered in evidence does not make the clothing itself inadmissible. In State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972), it was argued that the introduction of certain items of clothing unnecessarily tended to inflame the minds of the jurors so as to deny defendant a fair trial because certain stipulations had been entered into between the State and defendant regarding the circumstances of the death. Held: Such items of evidence were *552 admissible as tending to shed light upon the crime notwithstanding the stipulations of counsel.
So it is here. The victim, William B. Turner, Sr., was shot in the chest and the clothing through which the shots passed was admissible to show the location of the wounds and was strong evidence on the issue whether the death of the deceased was proximately caused by the infliction of the shotgun wounds. The blood-covered items of clothing were relevant and shed light upon the extent of the bleeding and the seriousness of the wounds suffered by the deceased. Defendant's second assignment is overruled.
Defendant moved for nonsuit at the close of the State's evidence. His motion is grounded upon the contention that the evidence is insufficient to establish a causal relation between the victim's death and the gunshot wounds inflicted upon him by defendant. Denial of the motion constitutes defendant's third and final assignment of error.
To warrant a conviction for homicide the State must establish that the act of the accused was a proximate cause of the death. See State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952); State v. Everett, 194 N.C. 442, 140 S.E. 22 (1927). Criminal responsibility arises only if his act caused or directly contributed to the death. State v. Luther, 285 N.C. 570, 206 S.E.2d 238 (1974); State v. Horner, 248 N.C. 342, 103 S.E.2d 694 (1958). See 40 Am.Jur.2d, Homicide §§ 13 and 15 (1968), and cases cited therein. "[T]he act of the accused need not be the immediate cause of the death. He is legally accountable if the direct cause is a natural result of his criminal act." State v. Minton, supra; accord, State v. Phelps, 242 N.C. 540, 89 S.E.2d 132 (1955).
When tested by these rules, the State's evidence in this case suffices to show beyond a reasonable doubt that the death of William B. Turner, Sr., was proximately caused by the shotgun pellets fired into his chest by defendant. The State's evidence is sufficient to support the following findings: Prior to the robbery the victim was sixty years of age and suffered from a chronic lung disease which left his lungs black, very fibrous and scarred. On 6 January 1975 defendant shot him in the left chest with a .410 gauge sawed-off shotgun inflicting wounds over an area of 12 to 13 inches. The pellets penetrated the skin and the muscles of the chest wall, puncturing the left lung and permitting air to leak into the space between the lung and the chest wall. This caused a partial collapse of the left lung due to air leakage. The injury to the lungs caused a severe infection which was producing purulent sputum. To arrest the infection it was necessary for the attending physicians to administer antibiotics in the form of sulfa drugs, including a drug called gantrisin. Mr. Turner had a hypersensitivity to gantrisin and developed myocarditis, which is an inflammation of the heart that can be fatal. The inflammation of Mr. Turner's heart was the immediate cause of his death and was a natural and direct result of the gunshot wound he sustained on 6 January 1975. These permissible findings are fully supported by the expert testimony of Dr. Nye. It necessarily follows that the evidence was sufficient to carry to the jury the question whether the shotgun wounds inflicted upon the deceased by the defendant were the proximate cause of death. See State v. Bartlett, 257 N.C. 669, 127 S.E.2d 241 (1962). See also State v. Parrish, 251 N.C. 274, 111 S.E.2d 314 (1959); State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956).
The fact that the gantrisin caused myocarditis which, in turn, was the immediate cause of death, affords defendant no sanctuary. If it be conceded arguendo that the victim's death immediately resulted from improper or unskilled treatment by attending physicians, that is no defense to a charge of homicide against one who has inflicted a dangerous wound which necessitated the treatment. Neither negligent treatment nor neglect of an injury will excuse a wrongdoer unless the treatment or neglect was the sole cause of death. See 40 Am.Jur.2d, Homicide, § 19 (1968), and cases cited therein; Annot., 100 A.L.R. 2d 769 *553 (1965). Where, as here, gunshot wounds inflicted by the accused are a contributing cause of death, defendant is criminally responsible therefor. Defendant's third assignment of error is overruled.
The record discloses a senseless and unprovoked killing committed during the attempted perpetration of an armed robbery. Defendant stands properly convicted of this crime following a fair trial before an impartial jury. The verdict and judgment must therefore be upheld.
NO ERROR.