State v. Hefler
310 S.E.2d 310
N.C.
1984
Check Treatment
MARTIN, Justice.

Defendant brings one issue for our consideration. He argues that the trial court should have dismissed the case at the close of the state’s evidence. The defendant did not present evidence. Defendant bases his assignment upon two contentions.

First, defendant contends that there was insufficient evidence to submit the case to the jury on the charge of involuntary manslaughter.

Involuntary manslaughter is the unlawful killing of a human being unintentionally and without malice but proximately resulting from the commission of an unlawful act not amounting to a felony, or some act done in an unlawful or culpably negligent manner . . . and where fatal consequences of the negligent act were not improbable under all the facts existent at the time. . . . “Culpable negligence under the criminal law is such recklessness or carelessness, resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.”

State v. Williams, 231 N.C. 214, 215-16, 56 S.E. 2d 574, 574-75 (1949) (citations omitted). The trial court charged the jury on four unlawful acts: driving without due caution and circumspection and *138 at a speed or in a manner as to be likely to endanger any person, N.C.G.S. 20-140(b); driving at a speed greater than is reasonable and prudent under the conditions then existing, N.C.G.S. 20-141(a); failing to decrease speed to avoid colliding with any person, N.C.G.S. 20-141(m); and failing to drive on the right side of the highway, N.C.G.S. 20-146. The court further instructed the jury that there was no evidence that defendant intentionally violated any of these safety statutes but the jury could find culpable negligence in the unintentional violation of a statute accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable foresight, amounting altogether to a thoughtless disregard of the consequences or a heedless indifference to the safety of others.

When the evidence is considered in the light most favorable to the state, as we must do, State v. Witherspoon, 293 N.C. 321, 237 S.E. 2d 822 (1977), it was sufficient to deny defendant’s motion to dismiss. There is ample evidence to support findings that defendant was driving after drinking and taking drugs and that he had a thoughtless disregard of the consequences of his acts and indifference to others. He did not stop after hitting the parked Volkswagen and fled the scene after striking Sledge’s car. He crossed to the left side of the roadway to strike Stevens, who was on his proper side of the road as a pedestrian. He was doing 30 to 35 m.p.h. on a roadway in an apartment area where “speed bumps” were located and did not reduce his speed to avoid colliding with Stevens or Sledge. He did not drive with due caution and circumspection and as a result killed Stevens. Defendant’s argument is without merit.

Defendant’s contention that the “year and a day” rule should be applied to the charge of involuntary manslaughter is more intriguing. A brief review of the history of the rule is helpful. The ancient statute, upon which the rule is based, reads in pertinent part:

An Appeal of Murther. ... (4) It is provided also, that no Appeal shall be abated so soon as they have been heretofore; but if the Appellor declare the Deed, the Year, the Day, the Hour, the Time of the King, and the Town where the Deed was done, the Appeal shall stand in Effect, (5) and shall *139 not be abated for Default of fresh Suit, if the Party shall sue within the Year and the Day after the Deed done.

Statutes of Gloucester, 6 Edw. I, c. IX (1278); 1 Statutes at Large 67 (1763). The “Appeal” referred to in the statute was not from a trial court to an appellate court. Rather, an “appeal of death” was one of the remedies at common law for murder. It was a criminal prosecution by a private person against another for this heinous crime demanding punishment on account of the injury suffered, rather than for the offense against the public. Originally, the appellor could recover damages (a sort of criminal wrongful death proceeding) but the proceeding later evolved into the infliction of punishment on the wrongdoer. 4 W. Blackstone, Commentaries *313. Appeals of death were abolished in England in 1819.

When adopted, the year and a day rule was a statute of limitations with respect to the commencement of an appeal of death action. Id. at *315. Through transition, and perhaps misinterpretation, the rule as we know it today came to be applied to murder cases. See generally Note, The Abolition of the Year and a Day Rule: Commonwealth v. Ladd, 65 Dick. L. Rev. 166 (1961). Such was the state of the law when this Court wrote in State v. Orrell, 12 N.C. 139, 141 (1826): “[I]f death did not take place within a year and a day of the time of receiving the wound, the law draws the conclusion that it was not the cause of death; and neither the court nor jury can draw a contrary one.” In the same case, Chief Justice Taylor wrote: “For if the death happened beyond that time, the law would presume that it proceeded from some other cause than the wound.” Id. at 141.

This Court has mentioned the rule in six cases: State v. Orrell, supra; State v. Shepherd, 30 N.C. 195 (1847); State v. Baker, 46 N.C. 267 (1854); State v. Haney, 67 N.C. 467 (1872); State v. Morgan, 85 N.C. 581 (1881); State v. Pate, 121 N.C. 659, 28 S.E. 354 (1897). All six cases are murder cases with sentences of death. In only two of the cases, Orrell and Haney, was there a challenge based upon the rule. The other four cases involved motions based upon other defects in the indictments or variances in the evidence in which the rule is only incidentally involved and not controlling of the outcome. Only in Orrell did the Court hold that the rule required that the judgment be arrested. This Court has never applied the rule to an involuntary manslaughter case. Defendant *140 contends that the rule should be extended to bar prosecutions for involuntary manslaughter. We are not so persuaded and decline the invitation to so extend the rule.

The apparent reason for applying the rule to murder prosecutions was the uncertainty of medical science in determining the cause of death because of the long lapse of time between the injury and death. The reasoning was that in cases where the defendant’s life was at stake, the rule of law ought to be certain. 3 Coke, Institutes 53 (1817); The King v. Dyson, 2 K.B. 454 (1908).

We take judicial notice of the rapid development and proliferation of the art and science of medicine and crime detection. Sophisticated medical tests, analyses, and diagnoses allow positive evidence to be presented to a jury on questions of causation in criminal prosecutions. For the courts to remain judicially oblivious of these advances when considering whether to extend an ancient common law rule would be folly. We must let the light of scientific development illuminate the legal issues of today. It would be incongruous indeed that medical science has developed to the point that it may prolong human life for long periods if that same development be utilized to bar conviction of a killer by prolonging the life of his victim.

In resolving this dilemma, the question of what constitutes the death of a human being may become pertinent. Although it is not necessary in the resolution of this appeal to apply the definition of death as set out in N.C.G.S. 90-323, such application may be entirely appropriate in cases where the rule is invoked. Even so, the evidence in this case would support a finding that Stevens died, as defined in the statute, well before the expiration of a year and a day following his injury. The statute in relevant part reads: “Brain death, defined as irreversible cessation of total brain function, may be used as a sole basis for the determination that a person has died, particularly when brain death occurs in the presence of artificially maintained respiratory and circulatory functions.” Dr. Robert Brawley, an expert medical witness specializing in neurosurgery, was one of the physicians attending Stevens from the time he was admitted to the emergency room until he was declared dead on 16 March 1981. He testified, in part, as follows: When Stevens was first examined, he was comatose, unconscious, responding to pain, and decerebrate on the left *141 side. He only had reflex movement on his left side; his right side moved in a semi-purposeful manner. A CT scan revealed that there was bruising and a hematoma on the right side of the brain. About thirty-six hours later, his condition deteriorated suddenly. He became totally unresponsive, even to pain, and his right eye dilated, indicating that his brain was herniating, exuding from the skull into the spinal column. A craniotomy was immediately performed on Stevens. There was no significant change in his condition. Although intensive efforts were applied to Stevens for a month, it became apparent that he was not going to make a satisfactory recovery. Two additional neurosurgeons examined Stevens and agreed with this prognosis. After a conference with Stevens’s family, it was agreed to cease the intensive efforts, and thereafter he was only fed. His temperature was uncontrollable because the part of his brain that controlled it was destroyed. “It was one of a vegetated state until he died.”

This evidence would support a finding that while Stevens was receiving artificially maintained respiratory functions and other intensive treatment and support, his brain irreversibly and totally ceased functioning within the meaning of the statute approximately thirty-six hours after he was admitted to the hospital.

Bearing in mind that we are not faced with the issue of whether the rule should continue to be applied in murder cases, upon which we express no opinion, we do not hesitate to refuse to extend the rule for the first time to involuntary manslaughter cases. See Commonwealth v. Evaul, 5 Pa. D. & C. 105 (1924) (the Pennsylvania court refusing to extend the rule to involuntary manslaughter cases). Pennsylvania later abolished the rule entirely. Commonwealth v. Ladd, 402 Pa. 164, 166 A. 2d 501 (1960). We recognize there is authority to the contrary. Elliott v. Mills, 335 P. 2d 1104 (Okla. Crim. App. 1959) (the Oklahoma court applying the rule while recognizing that it had “run the limit of its logic”). However, we find the better reasoned rule to be consistent with our decision. See generally Annot., 60 A.L.R. 3d 1323 (1974). Indeed, as early as 1908, the merit of the rule was doubted in England itself. The King v. Dyson, supra, 2 K.B. 454.

We also recognize, but are not convinced by, the argument that not applying the rule may allow the Damocles sword of *142 prosecution to remain above the head of a defendant for an additional period of time. Such delays, of course, cause problems for the defendant as well as the state. North Carolina does not have a statute of limitations for the prosecution of involuntary manslaughter, a felony. State v. Johnson, 275 N.C. 264, 167 S.E. 2d 274 (1969). Our reports contain many cases that were tried years after the crime was committed. E.g., State v. Wingler, 184 N.C. 747, 115 S.E. 59 (1922) (murder committed in 1893, trial in 1922). In balancing the interests of the defendant against those of the state in this respect, we find that society’s interests in the prosecution of persons charged with involuntary manslaughter outweigh the hardship imposed upon the defendant.

The decision of the Court of Appeals is

Affirmed.