Appeal by defendant from Hobgood, Judge. Judgments entered 31 August 1978 in Superior Court, Durham County. Heard in the Court of Appeals 21 August 1979.
Vaughn, Judge. Judges Hedrick and Arnold concur.
Two assignments of error are brought forward by the defendant on the trial judge's instruction to the jury. Both deal with the issue of proximate cause. We find no merit in these arguments.
"Proximate cause is an element of second degree murder and manslaughter." State v. Sherrill, 28 N.C. App. 311, 313, 220 S.E.2d 822, 824 (1976). The acts of the defendant must be a real cause, a cause without which the decedent's death would not have occurred. The weight of the evidence supports the apparent jury conclusion that the defendant's acts were the proximate cause of death. The jury could but was not required to find that the sole cause of death was the termination of life support systems by medical authorities rather than the shooting by the defendant.
The trial judge was overly careful in his instruction on proximate cause. He instructed at length on brain death. There was no need for this. The statute on brain death, G.S. 90-322, has no application to this case. The procedures in G.S. 90-322(a) and (b) and the exculpatory clause in G.S. 90-322(d) are not for the protection of criminal assailants. The statute provides a legal procedure for physicians to terminate life support systems where no brain function exists which, if followed, would protect the physician from civil or criminal liability. See Comment, 14 Wake Forest L. Rev. 771, 784-85 (1978). The law in criminal prosecutions for murder is still that the intervening act must be the sole cause of death. It is sufficient that the defendant's act in shooting the deceased was a contributing factor which in combination with the subsequent acts of the doctor in treatment proximately caused the death. Even if the doctor was negligent, the defendant will not escape liability. State v. Jones, 290 N.C. 292, 225 S.E.2d 549 (1976). The trial judge's instruction greatly exceeded this position of our Courts to the defendant's benefit.
The argument that the trial judge erred in his instruction on voluntary manslaughter in not properly instructing on proximate cause is not supported by the charge. The trial judge did properly instruct the jury. He properly defined voluntary manslaughter as the unlawful killing of a human being without malice. See State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971). Immediately preceding the discussions of the voluntary manslaughter charge, the trial judge discussed extensively the issue of proximate cause as related to this case. At the opening of his charge on voluntary manslaughter, he said, " if you do not find the defendant not guilty on account of what I have just given you in reference to the life support system . . . you would determine whether or not he is guilty of voluntary manslaughter. . . ." (Emphasis added.) In doing this, he properly put the causation issue before the jury. Before reaching voluntary manslaughter, the jury would have to resolve the issue of proximate cause involved in the determination of brain death and termination of the life support systems. Later in the charge, the trial judge explicitly made reference to proximate cause as an issue to be resolved in voluntary manslaughter. The defendant relies on State v. Ramey, 273 N.C. 325, 160 S.E.2d 56 (1968) and State v. Sherrill, 28 N.C. App. 311, 220 S.E.2d 822 (1976). In referring to this line of cases cited by the defendant, the Supreme Court has said
We do not, however, understand these cases to create an exception to the general rule that no specific language is required to give a correct instruction, so long as the jury is properly instructed on the law bearing upon each essential element of the offense charged. Unlike the charge before us, in the cases cited above the jury was instructed in language which assumed that the defendant had indeed killed the deceased, thus taking the issues away from the jury's consideration." State v. Smith, 294 N.C. 365, 381, 241 S.E.2d 674, 683 (1978). (Citations omitted.)
Here, as State v. Smith, proximate cause was not removed from the trial judge's instruction on voluntary manslaughter but was instead an express part of it.
The defendant contends the trial judge erred in sustaining an objection by the State to a question put to him on direct examination by his attorney. The defendant was asked on direct examination,
"Did you feel that he was ging to attack you?" This is a leading question as it suggests the desired answer from a friendly witness on direct examination and is answerable by yes or no. The trial judge properly sustained objection to it and did not abuse his discretion. State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974).
The first officer to arrive on the scene was told that the man who did the shooting was in the defendant's apartment. The officer identified himself and entered with gun drawn and was met by the defendant who said, "Don't shoot. I am the person who called the ambulance." The officer then asked, "Where is the gun?" The defendant pointed to the couch. A rifle was in plain view on the seat of the couch. The defendant's argument that these statements and the rifle were inadmissible under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966) has no merit. The defendant was not yet under arrest. This was not a custodial interrogation but an on-the-scene investigation of an emergency situation. The question was proper under the circumstances. State v. Archible, 25 N.C. App. 95, 212 S.E.2d 44 (1975); State v. Thomas, 22 N.C. App. 206, 206 S.E.2d 390, appeal dismissed, 285 N.C. 763, 209 S.E.2d 287 (1974). The rifle, in plain view, was observed by an officer lawfully present following a general ...