State v. Howard, 4

• Decision Date: 23 August 1968
• Docket Number: No. 4,4
• Citation: 274 N.C. 186,162 S.E.2d 495
• Parties: STATE of North Carolina v. David Earl HOWARD and Joe Howard.
• Court: North Carolina Supreme Court

Page 495

162 S.E.2d 495

274 N.C. 186

STATE of North Carolina v. David Earl HOWARD and Joe Howard.

No. 4.

Supreme Court of North Carolina.

Aug. 23, 1968.

T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.

L. H. Ross, Washington, D.C., for David Earl Howard, defendant appellant.

Junius D. Grimes, Jr., Washington, D.C., for Joe Howard, defendant appellant.

SHARP, Justice.

Each defendant assigns as error the court's refusal to grant his motions of nonsuit. The theory of the State's case is that the defendants murdered Lewis in the perpetration of a robbery (G.S. § 14--17), and that each was present aiding and abetting the other in the commission of that felony. Each defendant contends that the other killed and robbed Lewis without his assistance or connivance; that he was merely present, took no part in the assault and robbery, and did not share in the proceeds.

Had either defendant rested at the close of the State's case, he would have been entitled to have his motion of nonsuit considered solely upon the State's evidence and without reference to the testimony and evidence of the other defendant. State v. Frazier and State v. Givens, 268 N.C. 249, 150 S.E.2d 431. Since, however, each offered evidence, in passing upon the motions for nonsuit, we must consider all the evidence in the case. G.S. § 15--173; State v. Prince, 270 N.C. 769, 154 S.E.2d 897. Thus, each defendant's motion must be finally considered--not only in the light of the State's evidence--but in the light of that offered by his co-defendant. State v. Norton, 222 N.C. 418, 23 S.E.2d 301. The preliminary statement of facts manifests the sufficiency of the evidence to overcome each defendant's motion of nonsuit.

Both defendants also assign as error the ruling of the court which permitted the coroner, Bonner Paul, to testify that in his opinion Lewis' death resulted from 'the laceration of the brain caused by a fractured skull.' When the State tendered Paul as an expert 'in the cause of death when there is evidence of violence,' defendants objected. The court overruled the objection and found Paul to be 'expert in the field of coroner's work and in the examining of bodies to determine cause of death when there is some evidence of violence.' Defendants did not except to this finding. They did, however, object and except to Paul's opinion testimony as to the cause of Lewis' death.

The State's evidence with reference to the witness' training in 'coroner's work' tended to show: Paul graduated from a college of mortuary science in 1936, and since then has attended seminars at North Carolina Memorial Hospital in Chapel Hill and Bowman Gray School of Medicine in Winston-Salem. During the last five years he has regularly attended coroner's schools. While on duty in the Navy he graduated from the Hospital Corps School at Portsmouth, Virginia. In the last twenty years, he has 'examined approximately a thousand questionable deaths.'

Paul's qualifications and experience clearly qualify him as an expert mortician. Notwithstanding, defendants contend that he lacked sufficient medical training to give an opinion as to the cause of Lewis' death, and that his testimony was highly prejudicial to them.

The authorities differ as to when an undertaker, or other witness who is not a medical expert, may express an opinion as to the cause of death. 23 C.J.S. Criminal Law § 878(2), pp. 458--459 (1961); 32 C.J.S. Evidence § 546(92) (1964); 31 Am.Jur.2d Expert and Opinion Evidence § 105 (1967); Annot., Admissibility of opinion evidence as to cause of death, disease, or injury, 136 A.L.R. 965 (1942), and Supplementary Annot. in 66 A.L.R.2d 1082 (1959). See the discussion of the problem in State v. Smith, 221 N.C. 278, 20 S.E.2d 313. The general rule, however, is that the opinion of a nonmedical witness as to the cause of death is admissible if the witness is qualified by experience and observation to give an opinion, and the facts to be interpreted are not of such a nature as to render valueless any opinion but that of an expert in a particular field. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753; 31 Am.Jur.2d Expert and Opinion Evidence § 99 (1967). In Jordan v. Glickman, 219 N.C. 388, 14 S.E.2d 40, this Court said 'We do not subscribe to the doctrine that the cause of death can be proven only by the opinion of a physician, or other expert witness.' Id. at 391, 14 S.E.2d at 42. In Gillikin v. Burbage, supra, 263 N.C. at 325, 139 S.E.2d at 760, it is said: 'There are many instances in which the facts in evidence are such that any layman of average intelligence and experience would know what caused the injuries complained of.' In such case, evidence is admitted upon the ground that it 'is more in the nature of a fact than an opinion.' Annot., 136 A.L.R. 965, 1005 (1942).

In a homicide case it is, of course, always best to have testimony of medical experts 'as to the fatal character of wounds' if such evidence is available. Revels v. State, 64 Fla. 432, 59 So. 951. Where, however, such evidence is not accessible, a nonexpert who saw the wounds upon the body of the deceased may describe them to the jury. If his training and experience convince the court that he is qualified to do so, he may express an opinion as to whether the wounds caused the death--unless they are 'of such a nature as to render valueless any opinion except that of an expert.' In any event, where the injuries are of such a character that any person of ordinary intelligence would know that they caused the death, the witness' expressed opinion cannot be held for prejudicial error. In Foley v. Crawford, 125 Kan. 252, 264 P. 59, an ambulance driver, who found a body at the bottom of an elevator shaft, testified over objection that the deceased died of a broken neck. The court said: 'It did not take an expert to testify that the boy's death had been caused by his neck being broken. Any intelligent person who examined the body could have testified to that fact.' Id. at 255, 264 P. at 61.

In this case, all the evidence tends to show: Prior to the time he alighted from Joe's automobile at Dody's place, Lewis was uninjured. Although he had been drinking, he was still able to make the rounds of places where liquor could be bought. At Dody's, he was knocked down by one of the defendants, dragged for an appreciable distance, and left beside an abandoned parsonage. There he was found dead the next morning, his skull fractured and his brain lacerated. A bloody cinder block was beside his head.

It did not take a doctor to determine that he had died from the visible head injuries. Paul's evidence was competent, but the State's case did not depend upon it. State v. French, 225 N.C. 276, 34 S.E.2d 157. Without the benefit of his opinion, the jury would undoubtedly have arrived at the same conclusion he did. Defendants' assignments of error based on exceptions to the admission of this evidence are overruled.

David Earl took no exception to the judge's charge to the jury. Joe assigns as error the following portion of the charge: '* * * The court further instructs you that the injury inflicted by the defendants, or either of them, must be the proximate cause of the deceased's death.'

Taken out of context, as it is in the assignment of error, the foregoing statement might be interpreted as an assumption by the trial judge (a) that one or both of the defendants fractured Lewis' skull and (b) that the fracture caused his death. Considered in its relation to the entire charge, however, it is inconceivable that the jury understood the judge to be telling them that he thought these were facts which had been proven. Throughout the charge, he made it quite clear that, in order to convict either defendant of murder, the State must satisfy the jury beyond a reasonable doubt either that the particular defendant had inflicted injuries on the deceased which proximately resulted in his death or that the injuries had been inflicted by the other pursuant to a conspiracy between the two defendants to rob Lewis. This assignment of error is not sustained.

Joe's other assignment of error to the charge is that, when he concluded, the judge inquired of counsel, 'Anything further gentlemen?' The solicitor, Mr. Ross and Mr. Grimes, all responded, 'No.' Joe now argues that counsel were compelled to answer, 'No'; that this answer caused the jury to assume that there was no error in the charge and that this assumption prejudiced defendant. We are unable to follow this reasoning. Although it is better practice for the court to make such an inquiry of counsel at the bench, where the jury cannot hear any colloquy which might result, we can imagine no prejudice to either of these defendants from the court's question.

Joe's remaining assignment of error to the charge is that the court did not give the following requested instructions:

(a) 'That it was not the duty of or legal obligation of defenadnt Joe Howard to take any overt action or come to the rescue or defense of the deceased Major Wright Lewis.

(b) 'That if the jury believes all of the facts in these cases to be as testified to by the defendant, Joe Howard, then it shall be their duty to return a verdict of not guilty on all counts.'

Even if a defendant is entitled to requested instructions, the court is not required to give them verbatim. It is sufficient if they are given in substance. State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 96 A.L.R.2d 1422, cert. denied, 368 U.S. 851, 82 S.Ct. 85, 7 L.Ed.2d 49. The judge gave the substance of requested instruction (a) when he charged the jury that 'mere presence' at the scene of the crime 'would place no legal obligation on either of the defendants * * * to take any overt action or come to the rescue of the deceased Major Wright Lewis.' The fact that the court included both defendants in the same instruction was not prejudicial to either.

Requested instruction (b), although not given...