Gordon v. State , 649 P.2d 807 ( 1982 )

OPINION

BUSSEY, Judge:

On appeal from his conviction in Pottawatomie County District Court for the offense of Manslaughter in the Second Degree, Case No. CRF-80-105, James Quincy Gordon, the defendant below, raises two assignments of error.

Since the sufficiency of the evidence to support the verdict of the jury is not challenged, suffice it to say that on the evening of March 9, 1980, after engaging in an argument over a poker game, the defendant inflicted certain gunshot wounds on Leroy Rutledge from which the latter did languish and die.

The defendant argues that the trial court committed error when it refused to allow testimony as to inadequate medical care received by the victim. The defendant contends that this testimony should have been allowed as a defense to the charge of manslaughter in the first degree. Further, the defendant alleges that the trial court’s refusal to give requested instructions¹ was error, and the giving of Instruction No. 15² misinformed the jury as to the applicable law in Oklahoma.

The law in Oklahoma states that:

One who has inflicted an injury which is dangerous, that is, calculated to destroy or endanger life, is not relieved of responsibility by the fact that the immediate or a contributing cause of the death was erroneous or unskillful medical treatment or care of the injury by deceased, or by a physician, or by nurses or other attendants. Thus, it is not a defense that the victim died during or as the immediate result of a surgical operation rendered necessary by the existence of the wound, or that there was a possible mode of treatment which might have averted death, or that deceased might have recovered if he had submitted to an operation, or had adopted a different diet. Pettigrew v. State, 554 P.2d 1186 (Okl.Cr.1976) at 1193, 40 C.J.S. Homicide, § 11C.

After a careful review of the record and the testimony of the expert medical witnesses, we hold that the gunshot wounds inflicted by the defendant, into the victim, were the proximate cause of death. Therefore, the trial court properly refused the requested instructions and correctly informed the jury as to the law in Oklahoma. The trial court properly limited the medical evidence to testimony concerning the cause of death and did not err by excluding evidence tending to show only medical malpractice.

The judgment and sentence is AFFIRMED.

CORNISH, J., specially concurs. BRETT, P. J., concurs in results.

1 . REQUESTED INSTRUCTION NO. 1

You are instructed that the burden is on the State to prove beyond a reasonable doubt that death ensued as the proximate result of injury received, and if defendant can establish or show to the extent of creating a reasonable doubt that the victim died from causes which were not proximate result of injury received, the defendant is entitled to an acquittal, but the defendant cannot exonerate himself from criminal liability by showing that different or more skillful medical treatment might have saved the life of the deceased and rather, the defendant must show that erroneous or unskillful medical treatment became an efficient intervening cause and that such medical care became the proximate cause of death.

Given in part by the trial judge.

REQUESTED INSTRUCTION NO. 2

You are instructed that when and where a person inflicts on another a wound not in itself calculated to produce death, and the injured person dies solely as a result of the improper treatment of the wound by an attending physician or surgeon, the fact that the death was caused by medical mistreatment is a good defense to a charge of manslaughter, first degree.

2 . INSTRUCTION NO. 15

You are instructed that the laws of the State of Oklahoma provide:

One who has inflicted an injury which is dangerous, that is, calculated to destroy or endanger life, is not relieved of responsibility by the fact that the immediate or a contibut-ing [sic] cause of the death was erroneous or unskilled medical treatment or care of the injury by deceased, or by a physician, or by nurses or other attendants. Thus it is not a defense that the victim died during or as the immediate result of a surgical operation rendered necessary by the existence of the wound, or that there was a possible mode of treatment which might have averted death, or that deceased might have recovered if he had submitted to an operation, or had adopted a different diet.