West v. State

Decision Date21 January 1966
Docket NumberNo. 572,572
Citation409 P.2d 847
PartiesJames D. WEST, Appellant, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court

C. R. Kennelly, Nome, Millard F. Ingraham, Fairbanks, for appellant.

Warren C. Colver, Atty. Gen., and Theodore E. Fleischer, Asst. Atty. Gen., Juneau, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

NESBETT, Chief Justice.

Appellant was indicted for manslaughter and found guilty by a jury. The principal point raised on appeal is whether the proof of the cause of death was sufficient.

Appellant was the owner of the Board of Trade Bar in Nome, Alaska and was tending bar on the evening of April 17, 1964, when Richard Nershak, a 58 year old Eskimo, entered the establishment. About 15 minutes later and presumably because of the attention Nershak paid to appellant's wife who was sitting at the bar, appellant came from behind the bar, threw Nershak to the floor and kicked him in the head at least twice and once in the side. Appellant then dragged Nershak outside, propped him against the building in a sitting position, bounced his head against the building several times and kicked him in the head and body. One of the witnesses summoned a police officer who took Nershak to the hospital where he was pronounced dead by the doctor within approximately ten minutes after the attack.

A four hour autopsy was performed by Dr. Fenstermacher, who discovered a fresh hemorrhage over the right kidney, lacerations on the inside and outside of the upper lip and a broken front tooth. Specimens from the autopsy were mailed to Dr. Beirne, a pathologist in Anchorage.

Dr. Beirne found degeneration of the kidneys, some lung inflammation and a large amount of alcohol in the blood and gastric contents which indicated to him that Nershak was quite intoxicated. The examination of neither doctor revealed any particular sufficient cause of death. It was the opinion of both doctors that Nershak's death was caused by shock induced by the physical attack he had suffered.

Dr. Fenstermacher and Dr. Beirne testified as medical experts at the trial. In response to hypothetical questions incorporating pertinent facts relating to the deceased and the physical attack made upon him by appellant, both doctors testified that the beating Nershak received induced shock which caused his death.

Dr. Beirne testified in some detail concerning shock as follows: He defined it as a term used in medicine to describe the condition of the body when it collapses and fails to respond to an injury. A person who sees blood and faints suffers from mental shock, one receiving an injury to the body may suffer from physical shock. The average person responds fairly well to an injury up to a certain point, but beyond that point the person goes into shock whereupon the heart beat slows down, blood pressure falls, the skin becomes cold and sweaty and the body defenses do not operate to correct the injury. It is not necessarily the extent of the damage done to the body that determines shock--a very small injury well placed is capable of causing death from shock, whereas an extensive injury, to the legs for example, would not necessarily cause death. Injuries to the flesh do not always show up well. A blow to the solar plexis in the stomach area can produce shock which may cause death. A kick in the testicles can cause a man to go into immediate deep shock and result in death. Where a victim has been alive and exhibiting no unusual symptoms, then receives a severe beating, collapses and dies, and other causes of death are eliminated (by autopsy), it is reasonable to believe that the cause of death was shock brought on by the beating.

Appellant argues that since the autopsy failed to determine the immediate medical cause of death, a sufficient causal relation between the physical attack and Nershak's death was not established. Specifically, he contends that there was not sufficient evidence of physicial injuries capable of inducing shock; that the doctors unjustifiably assumed that shock had been induced by the injuries inflicted during the assault, and that death had resulted from the shock.

The issue raised by appellant is not new to the courts. A number of well considered decisions have been persuasive in our disposition of this point against appellant's contentions.

In Nordmeyer v. Sanzone, 1 which was a wrongful death action, expert medical testimony expressed the opinion that an automobile collision, which threw deceased forward causing his chest to strike the steering wheel, was the cause of the coronary thrombosis which caused his death five hours later. The court applied Kentucky law and stated:

It is settled law that expert medical testimony expressing an opinion as to the casue of death, based on a hypothetical question embracing the material facts supported by the evidence, does not invade the province of the jury, is admissible in evidence on the issue of cause of death, and although not conclusive on said issue, and even though it does not disprove every other possible cause of death, is sufficient to take such issue to the jury and to uphold a verdict in accordance therewith.

The appellant in Nordmeyer argued, as appellant has in the case before us, that there was not sufficient evidence of a traumatic injury and that the medical experts, in answering a hypothetical question, were required to assume the existence of trauma. After inferring a traumatic injury, the additional inference that the injury caused the thrombosis was drawn, according to appellant. It was argued that expert medical testimony expressing an opinion based upon an inference drawn from a previous inference is not sufficient to take the case to the jury. Appellant's construction of the evidence was rejected since the record contained testimony that because of the impact of the collision deceased was thrown forward, that his chest struck the steering wheel and that he lay there for few minutes without speaking. This testimony, tending to show injury capable of producing trauma, was held to be more than an inference and sufficient to support the opinion testimony of the medical experts.

In the case before us, Dr. Fenstermacher's autopsy revealed lacerations on the inside and outside of the upper lip and a broken front tooth, with fresh bleeding evident at both locations. A hemorrhage over one inch in diameter was found at the upper pole of the right kidney. The autopsy found that Nershak had several long standing medical problems and evidence of acute trauma, neither of which appeared sufficient to cause death. Dr. Fenstermacher testified that it would require a relatively severe blow to cause a hemorrhage to the kidney such as was found in the autopsy and that it would likewise require a severe blow to have broken Nershak's tooth and cut his lip. The kicks administered by appellant to the head, neck and body with dress shoes were described variously by the Eskimo witnesses as 'hard enough', 'just enough to hurt him', as a stomping or tromping on the head, as repeated kicks to the head accompanied by profanity from appellant at the conclusion of which blood was coming out of Nershak's mouth, as being kicks in the face of such force that Nershak's head would go back with a thud accompanied by the statement by appellant that '* * * I ought to break your _____ neck.'

Officer Martin arrived on the scene immediately after the last kicks were administered and was unable to find any pulse on Nershak, whereupon he loaded the limp body into his car with appellant's assistance and drove to the hospital. Nershak was heard to gasp twice in the patrol car. Concurrently with the second gasp his chest heaved and his head went back. One last gasp was heard at the hospital. Attempts at resuscitation were commenced by Dr. Fenstermacher within ten minutes after the last blows were administered, but were abandoned. Nershak was declared to have been dead upon arrival at the hospital.

We are of the opinion that there was a sufficient factual basis for the conclusion of the medical experts that the physical assault administered by appellant was capable of and did produce trauma, which induced a state of shock, which caused Nershak's death. The pypothetical questions embodied the pertinent facts. The opinion testimony of the medical experts was properly before the jury. The verdict was supported by substantial evidence. The trial court did not err in refusing to grant a judgment of acquittal at the conclusion of the state's case, 2 nor in refusing to grant appellant's motion for judgment n. o. v. or in the alternative for a new trial.

Appellant's claim that the trial court violated a requirement of AS 09.20.070 3 by selecting trial jurors only from among residents of the Second Judicial District residing within a 30 mile radius of Nome is denied for the reasons stated in our decision in Crawford v. State, Opinion No. 312, 408 P.2d 1002 published on December 20, 1965. In Crawford we upheld a geographical limitation of a 15 mile radius from the City of Anchorage for the selection of grand jurors. 4

Appellant herein additionally contends that AS 09.20.070 is violative of Article 1, Section 11 of the Alaska Constitution. 5

We disagree and...

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