State v. Cummings , 46 N.C. App. 680 ( 1980 )

MARTIN (Harry C.), Judge.

Defendants’ principal assignment of error is directed to the court’s refusal to grant their motions for dismissal at the close of all the evidence. Their argument is centered on the lack of a showing that the assault by defendants was a proximate cause of Melvin’s death.

As always, upon a motion to dismiss, we must view the evidence in the light most favorable to the state and allow the state every reasonable inference that may arise upon the evidence, regardless of whether it is circumstantial, direct, or both. Contradictions and discrepancies are for the jury to resolve and do not warrant nonsuit. If there is substantial evidence to support a finding that the offense has been committed and that defendant committed it, a case for the jury is made and nonsuit should be denied. State v. McKinney, 288 N.C. 113, 215 S.E. 2d 578 (1975); State v. Cook, 273 N.C. 377, 160 S.E. 2d 49 (1968). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E. 2d 882, 888 (1977); Boehm v. Board of Podiatry Examiners, 41 N.C. App. 567, 255 S.E. 2d 328, cert. denied, 298 N.C. 294, 259 S.E. 2d 298 (1979).

The state’s evidence, considered as above stated, shows Melvin was highly intoxicated and that this affected his ability to expel vomitus from his mouth; his “gag reflexes” were inoperative. He was more likely to inhale vomitus into his airway system if in a prone position. Prior to the assault by defendants, he was in an upright position, running backwards and moving about freely, and a logical inference from the evidence is that he was not vomiting prior to being knocked down. Defendants struck Melvin about the head and body with a board and broken bottle several times and knocked him to the sidewalk, flat on his back. Defendants made no effort to aid him but left him and ran back to Rick’s house. When Officer Burgess got to Melvin, he was still on his back, with his eyes glassed over, taking deep gasping breaths.

The state must produce evidence sufficient to establish beyond a reasonable doubt that the death proximately resulted from defendants’ unlawful acts. State v. Minton, 234 N.C. 716, 68 S.E. 2d 844, 31 A.L.R. 2d 682 (1952). The act complained of does not have to be the sole proximate cause of the death, nor the last act in sequence of time. There may be more than one proximate cause of the death in question. It is enough if defendants’ unlawful acts join and concur with other causes in producing the result. Batts v. Faggart, 260 N.C. 641, 133 S.E. 2d 504 (1963); Richardson v. Grayson, 252 N.C. 476, 113 S.E. 2d 922 (1960); Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E. 2d 536 (1949).

In State v. Knight, 247 N.C. 754, 102 S.E. 2d 259 (1958), defendant was properly found guilty of involuntary manslaughter where deceased died from fright or shock resulting from an unlawful battery upon him, even though the injuries inflicted thereby in and of themselves would not have caused death.

An accused who wounds another with intent to kill him and leaves him lying out of doors in a helpless condition on a frigid night is guilty of homicide if his disabled victim dies as the result of exposure to the cold. This is true because the act of the accused need not be the immediate cause of the death. He is legally accountable if the direct cause [of the death] is the natural result of his criminal act.

State v. Minton, supra at 722, 68 S.E. 2d at 848.

Where a defendant unlawfully assaulted deceased by striking him, without any intent to kill, causing him to fall and his head to strike the hard floor resulting in his death from a fractured skull, it is a homicide. Goldberg v. Insurance Co., 248 N.C. 86, 102 S.E. 2d 521 (1958).

The evidence in State v. Hargett, 255 N.C. 412, 121 S.E. 2d 589 (1961), is analogous to our case. There deceased, with defendant and others, was drinking, deceased being highly intoxicated, his ethanol content being 4.0 milligrams per milliliter. He was unconscious or in a helpless condition, although the acute alcoholism would not have killed him. Defendant and deceased were in front of a car, when defendant shoved him into a ditch where he fell face down in the water. Defendant drove away, leaving deceased in a ditch. There was no evidence of trauma on the body and the cause of death was drowning. The Supreme Court held the evidence was sufficient to submit the case to the jury on the charge of manslaughter.

The jury could reasonably find from the evidence that Melvin’s death resulted not from the injuries themselves, inflicted upon him in the unlawful battery by defendants, but from being knocked to the sidewalk upon his back where, because of his intoxicated condition, he was unable to expel the vomitus from his mouth and thereby “drowned,” and that Melvin would not have died but for defendants’ unlawful assault upon him. The direct cause of Melvin’s death, the aspiration of vomitus, was the natural result of defendants’ assault upon him.

The defendant must accept his victim in the condition that he finds him. We hold defendants’ motions for dismissal were properly overruled. Further, we hold the evidence is sufficient for a rational trier of fact to find defendants guilty beyond a reasonable doubt of involuntary manslaughter under the laws of North Carolina. Jackson v. Virginia, ---- U.S. ---, 61 L. Ed. 2d 560, rehearing denied, 62 L. Ed. 2d 126 (1979).

Defendants argue in their brief that the trial court erred in its charge to the jury. These assertions have no merit and as they do not raise any new or unusual questions, they require no elaboration. The case was well tried by the veteran trial judge and “illustrates anew the unrelenting truth that ‘the sin ye do by two and two ye must pay for one by one.’ ” State v. Minton, supra at 727, 68 S.E. 2d at 852.

No error.

Judge VAUGHN concurs. Judge CLARK dissents.