185 S.E.2d 317 | N.C. Ct. App. | 1971
STATE of North Carolina
v.
Ellis Earl MIZELLE.
Court of Appeals of North Carolina.
*318 Atty. Gen. Robert Morgan by Deputy Atty. Gen. R. Bruce White, Jr., and Asst. Atty. Gen. Ladson F. Hart for the State.
Cherry, Cherry & Flythe, by Joseph J. Flythe, Ahoskie, for defendant appellant.
CAMPBELL, Judge.
The defendant makes numerous assignments of error in the trial, but since a new trial is being ordered on one assignment of error, we will refrain from discussing the others as they may not arise on a new trial.
The defendant assigns as error the failure of the trial judge to instruct the jury on proximate cause.
We think this assignment of error is well taken. The trial judge instructed the jury that if Willoughby's death "was the natural and probable result of" the defendant's acts, then a verdict of guilty of involuntary manslaughter would follow. This was all the definition of proximate cause given by the trial judge and apparently was taken from pattern jury instructions for criminal cases in North Carolina.
This instruction is not sufficient as it fails to inform the jury as to the element of proximate cause. "To hold a person criminally responsible for a homicide his act must have been a proximate cause of the death." State v. Satterfield, 198 N.C. 682, 153 S.E. 155 (1930); State v. Phelps, 242 N.C. 540, 89 S.E.2d 132 (1955); State v. DeWitt, 252 N.C. 457, 114 S.E.2d 100 (1960).
Foreseeability is a requisite of proximate cause. We have previously pointed this out and ordered a new trial where a proper definition of proximate cause was not given in a civil action. Keener v. Litsinger, 11 N.C.App. 590, 181 S.E.2d 781 (1971). It is all the more imperative *319 that all of the necessary elements including a correct definition of proximate cause be given in a criminal case.
New trial.
MORRIS and PARKER, JJ., concur.
