Cole v. State
| Decision Date | 24 April 1974 |
| Citation | 512 S.W.2d 598 |
| Parties | Raymond COLE and Paul Cole, Jr., Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error. |
| Court | Tennessee Court of Criminal Appeals |
James R. Ralph, Memphis, Jack Woodall, Jackson, for plaintiffs in error.
David M. Pack, Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, Whit LaFon, Asst. Dist. Atty. Gen., Jackson, for defendant in error.
Plaintiffs in error, Raymond Cole and Paul Cole, Jr., appeal from their convictions for involuntary manslaughter and resulting sentences of not less than one nor more than five years in the penitentiary.
The jury had before it credible, albeit disputed, evidence that the victim was killed when his automobile was struck by a 1965 Chrysler being driven at a high rate of speed by Raymond Cole while racing a 1965 Ford Mustang being driven by his brother Paul Cole, Jr. Both of the defendants' automobiles were observed by witnesses speeding in a northerly direction around a curve on Hollywood Street in Jackson where one collided with the deceased's automobile crossing their paths on Arlington Street from the right. The defendant Paul Cole's automobile passed in front of the victim's car, but the Chrysler plowed into its left side knocking it into the air and throwing it some eighty-three feet onto a bridge abutment. The deceased was not breathing when the ambulance driver examined him and his heart stopped beating, but both signs of life reappeared and the victim lived until shortly after he was taken to the emergency room of a Memphis hospital.
From the above summary of facts it is readily apparent that the jury was justified in believing that the deceased was killed as a result of the defendants' operating their respective motor vehicles in such a reckless and unlawful manner and without due caution so that death was the natural or probable consequence of such conduct. The assignments of error addressing themselves to the sufficiency of the proof are overruled.
We find nothing improper in a physician testifying that in his opinion the deceased died of injuries incurred in the accident even though the doctor was not in attendance at the time of death and was a specialist in the field of orthopedic surgery instead of neurosurgery. A physician, being an expert witness, is entitled to rely on the history of a person whose injuries he is relating to a jury, and in any event the lay testimony of the ambulance attendant and other witnesses who described in detail the fatal injuries was sufficient to establish the cause of death beyond any reasonable doubt.
There was no error in the testimony of the deceased's mother to the effect that she was notified at about three o'clock that her son was dead. She accompanied the victim to the Baptist Hospital in Memphis and observed his condition up until the time of death, and the fact that someone advised her that death had occurred under such circumstances is not such hearsay as would taint the verdict Whether the deceased died within the hour is immaterial so long as the jury can determine the death resulted from the injuries inflicted by the defendants. The common law provides that death must ensue within a year and a day from the infliction of the mortal wound to constitute punishable homicide. 40 Am.Jur.2d Homicide § 14. It would have been incredible if the victim had not been severely injured in the accident as, indeed, was the defendant Raymond Cole also, and the jury was amply justified in attributing his death to the acts of the defendants. We find no error in the court's sustaining an objection to cross-examination concerning an alleged accident in which the victim may have been involved months before his death. There was no objection to this ruling by the court, and we find no relevancy in the inquiry since there is no suggestion that the deceased was in poor health prior to the accident as a result of any prior mishap. As aforesaid, no reasonable doubt as to the cause of death could have been engendered by the proof.
The principal contention advanced on behalf of the plaintiffs in error is that the indictment was fatally defective due to an obvious clerical error. In charging that the defendants violated the statute proscribing the practice popularly termed 'drag racing,' the language of the defining section of T.C.A. § 59--1040(a) was copied in the indictment but mistakenly cited as 'subsection (a) of Section 59--104 of the Tennessee Code Annotated.'
Although the...
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