State v. Harris

• Decision Date: 05 June 1975
• Docket Number: No. 39670,39670
• Citation: 230 N.W.2d 203,194 Neb. 74
• Parties: STATE of Nebraska, Appellee, v. Joseph Hayes HARRIS, Appellant.
• Court: Nebraska Supreme Court

Page 203

230 N.W.2d 203

194 Neb. 74

STATE of Nebraska, Appellee, v. Joseph Hayes HARRIS, Appellant.

No. 39670.

Supreme Court of Nebraska.

June 5, 1975.

Syllabus by the Court

1. In a prosecution for homicide the act of the accused must be a proximate cause of death but need not be the direct, immediate cause. It is sufficient if the direct cause resulted naturally from the act of the accused, as where the direct cause was a disease or infection resulting from the injury inflicted by the accused.

2. In a prosecution for homicide it is not a defense to one whose act has contributed to the death that improper treatment on the part of physicians, nurses, or the victim also contributed thereto; but one who has inflicted an injury is not responsible for homicide where death results solely from erroneous treatment by another.

3. The proximate cause of a death is that cause which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the death, and without which the result would not have occurred. It is the efficient cause, the one that necessarily sets in operation the factors that accomplish the death.

4. An efficient intervening cause is a new and independent cause, itself a proximate cause of the death, which breaks the causal connection between the original illegal act and the death.

Frank B. Morrison, Public Defender, Stanley A. Krieger, Asst. Public Defender, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., Jerold V. Fennell, Special Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

CLINTON, Justice.

After trial to the jury the defendant, Joseph Hayes Harris, was found guilty of murder in the first degree by reason of having killed Camille Hugg in the perpetration or attempted perpetration of a robbery. A judgment of guilty was entered on the verdict and the defendant, pursuant to the provisions of sections 28--401 and 29--2520 to 29--2524, R.S.Supp., 1974, was sentenced to imprisonment for life.

The issues for consideration on this appeal are: (1) Was the evidence sufficient to permit the jury to find that acts done by the defendant during the attempted robbery were, in legal contemplation, the cause of the death of the victim; and (2) the correctness of the instruction by which the issue of causation was submitted to the jury. We affirm.

The evidence permitted findings as follows. On the evening of October 28, 1973, Camille Hugg, age 81, was the victim of an attempted purse snatch by two young men. She resisted, clung to her purse, was knocked to the ground by her assailants, was kicked, and suffered a broken hip either from the fall or the blows. One of her assailants was the defendant, the other being Abe Clark Lytle, whose case is also before this court on appeal. The victim was hospitalized for treatment of her hip fracture, surgery was performed, and a pin inserted. She later died on December 17, 1973, without having been released from the hospital.

The primary theory of the defense was that the victim's death was not caused by the acts of the assailants, but was the result of intervening events and causes, including infection not related to the injury.

A summary of the evidence will suffice for determination of the first issue. Thomas Joseph Gurnett, M.D., one of the treating physicians, testified on behalf of the State. He had been Camille Hugg's physician since May 17, 1965. His last examination of her, preceding her hospitalization on October 16, 1973, occurred in June of 1971. At that time he had given her a general physical examination. She then had diabetes, well controlled by insulin, a mild hypertension, and a skin disorder involving both hands. She was at that time in generally good physical condition. The doctor had known her a long time through professional medical contact as she was a retired nurse anesthetist. He was of the opinion that if there had been any substantial physical ailment after July 1971 she would have consulted him, but she did not. Immediately following her injury on October 28, 1973, Camille Hugg was taken to Douglas County Hospital where she was first seen by Dr. Tomczak who is in charge of the emergency room at that institution. His examination showed that the victim's heart sounds were normal and her lungs clear. She was mentally alert and oriented, but anxious. She had bruises on an arm and signs of a left hip fracture which was later confirmed by X-ray. Traction was applied to the injured extremity. An electrocardiac examination showed slight pulse irregularity. Her blood pressure was also slightly elevated. She appeared to be her stated age. He ascertained that she had controlled diabetes, but was otherwise in good health. A urine culture demonstrated no infection.

On October 31, 1973, the patient was transferred to another hospital where she was seen for the first time after the accident by Dr. Gurnett. He attended and saw her daily after that until her death. His initial examination at this time indicated that she appeared to be in the same condition of health as in 1971, except for the broken hip, a mild bladder infection, and complaints of a pain which he believed, because of the nature of the pain and the fact that it gradually subsided, indicated a fracture of the sternum. He testified that in a person of the age of Camille Hugg a hip fracture 'can be life threatening.' In consultation with an orthopedic surgeon it was determined that surgery was necessary and that the fracture should be treated by internal fixation with a pin. This method would eliminate the necessity of a body cast. Such surgery was performed on November 4, 1973. Shortly after the surgery the patient developed a rapid irregular heartbeat. This was treated and the beat returned to normal.

The doctor testified that dangers associated with hip fracture and surgery in an elderly patient are respiratory difficulties, secondary pneumonia, circulatory problems, lack of fluid balance, and pressure sores. In this patient's case, pneumonia developed, circulatory problems developed, stress ulcer formed, a small bloodclot from the lower extremities lodged in a lung before abating, abdominal and bowel distress developed, infection of the parotid gland developed, probably caused by the debility from illness, and kidney failure developed, as did an overwhelming systemic infection. By November 17, 1973, the hip was healed. On December 17, 1973, the patient died.

On the question of the cause of death Dr. Gurnett testified on direct examination as follows: 'Q. Now, Doctor, I'll ask you if you have an opinion based on reasonable medical certainty from your examinations, findings, treatment, noting of the complications that set in, as to the cause of death of Camella Hugg on December 17th. A. Yes, sir, I do. Q. Could you relate that for us in summary fashion? A. I have the opinion that since Mrs. Hugg was up and about and doing well, not contacting me for medical treatment or advice, that following the fracture of her hip which occurred as the result of an injury, that the complications which I have described came in the wake of that injury, and all were directly related to the injury itself. It is my considered opinion that her death was secondary to the injuries and the following complications of that injury.' On redirect examination he testified: 'Q. Doctor Gurnett, would the complications that you spoke with reference to both on Direct and more fully on Cross Examination have occurred if Mrs. Hugg had not fractured her hip and been hospitalized? A. I do not believe they would have.' The substance of Dr. Gurnett's testimony was that if the victim had not suffered the broken hip the complications would not have occurred and she would not have died.

An autopsy was performed on the body on December 17, 1973. It generally verified the various complications testified to by Dr. Gurnett, except that of the generalized infection, and in addition showed that Camille Hugg had suffered a small myocardial infarction within 10 days of her death. The pathologist also testified that the tests used to determine whether general infection existed were unreliable and therefore were inconclusive. The pathologist did not search for evidence of a fracture of the sternum. Upon cross-examination, defense counsel sought to elicit from the pathologist an opinion that Miss Hugg died from the hip surgery. The answer was: 'No, sir, I don't think I can say that.'

The evidence tending to support the defendant's theory that the victim's death was caused by intervening events was most ably brought out by the presentation of pertinent medical records and a skilled cross-examination. The record of the trial indicates thorough and conscientious pretrial preparation by defense counsel. The fact that defense counsel's efforts in this area were knowledgeable is evidence by the responses from the expert witnesses. All aspects of the evidence which tended to support a conclusion of death caused by independent and intervening causes were clearly highlighted in the cross-examination. A summary of these highlights is not necessary.

It would appear that the evidence raised a factual question for the jury to determine, under proper instructions from the court, whether the victim's death was caused by acts of the accused or by independent intervening acts or causes. This court has, on several occasions since 1883, been called upon to consider the legal...