State v. Presta, 108 Wn. 256, 183 P. 112. Stated conversely, the rule is that such cross-examination may not be utilized for the primary purpose of discrediting the person on trial. State v. Bozovich, 145 Wn. 227, 259 P. 395. A review of the pertinent testimony shows no such improper purpose in the case at bar.
It is generally customary to introduce expert medical testimony to establish the cause of death; however, proof thereof need not be confined to that character of testimony. Engstrom, 79 Wn.2d at 476 (citing State v. Bozovich, 145 Wn. 227, 259 P. 395 (1927); L.S. Tellier, Annotation, Necessity, in Homicide Prosecution, of Expert Medical Testimony to Show Cause of Death, 31 A.L.R.2d 693 (1953)); see also State v. Childs, 8 Wn. App. 388, 391, 506 P.2d 869 (1973) (noting "proof of the cause of death does not depend solely upon expert medical testimony"); 31A AM. JUR. 2D Expert and Opinion Evidence § 258, at 258-59 (1989).
It is generally customary to introduce expert medical testimony to establish the cause of death; however, proof thereof need not be confined to that character of testimony. State v. Bozovich, 145 Wn. 227, 259 P. 395 (1927); see Necessity, in homicide prosecution, of expert medical testimony to show cause of death, Annot., 31 A.L.R.2d 693 (1953). We are satisfied that the court did not err in submitting this issue to the jury, and that there were substantial facts and circumstances upon which the jury could base its finding.
Waller v. People. 209 Ill. 284, 70 N.W. 681; State v. Rounds, 104 Vt. 442, 160 A. 249. See, also, in this connection: S. v. Peterson, supra ( 225 N.C. 540, 35 S.E.2d 645); S. v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; S. v. Johnson, supra ( 193 N.C. 701, 138 S.E. 19); Brundage v. State, 70 Ga. App. 696, 29 S.E.2d 316; James v. State, 67 Ga. App. 300, 20 S.E.2d 87; Brown v. State, 10 Ga. App. 216, 73 S.E. 33; Commonwealth v. Sullivan 285 Ky. 477, 148 S.W.2d 343; People v. Jackzo, 206 Mich. 183, 172 N.W. 557; Franklin v. State, 180 Tenn. 41, 171 S.W.2d 281; Mayfield v. State, 101 Tenn. 673, 49 S.W. 742; Lemons v. State, 97 Tenn. 560, 37 S.W. 552; McMillan v. State, 73 Tex.Crim. 343, 165 S.W. 576; State v. Bozovich, 145 Wn. 227, 259 P. 395."
t penalty that should be exacted of a defendant in such a case for his failure to seek, by way of a motion for a new trial, the remedy to which he is in any event entitled, would be a denial of his costs on his successful appeal. To this point we have limited our citation of supporting authority to those cases dealing with misconduct or claimed misconduct by the prosecuting attorney in his argument to the jury. Of interest also are the following cases, in which new trials were granted for other types of misconduct (in opening statements, or in the examination of witnesses), in which we either excused the failure to object or request instructions because no instruction could have cured the prejudicial error ( State v. O'Donnell (1937), 191 Wn. 511, 71 P.2d 571; State v. Smith (1937), 189 Wn. 422, 65 P.2d 1075) or held that an instruction actually given did not cure the prejudicial error ( State v. Tweedy (1931), 165 Wn. 281, 5 P.2d 335; State v. Carr (1930), 160 Wn. 83, 294 P. 1016; State v. Bozovich (1927), 145 Wn. 227, 259 P. 395). We summarize the issues here determined:
"`The safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial discharge of public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can hope for. Their devotion to duty is not measured, like the prowess of the savage, by the number of their victims.' "See, also, the following: Snider v. Washington Water Power Co., 66 Wn. 598, 120 P. 88; Rogers v. Kangley Timber Co., 74 Wn. 48, 132 P. 731; State v. Arnold, 130 Wn. 370, 227 P. 505; State v. Bozovich, 145 Wn. 227, 259 P. 395; and State v. Heaton, 149 Wn. 452, 271 P. 89." [2] No objections were made to the three statements above quoted.
[1] Appellant argues that the situation created by the deputy prosecutor and the witness was so prejudicial that no instruction of the court could cure the effect of the alleged misconduct and the court erred in refusing to grant a mistrial. The cases of State v. Bozovich, 145 Wn. 227, 259 P. 395; State v. Heaton, 149 Wn. 452, 271 P. 89; and State v. Tweedy, 165 Wn. 281, 5 P.2d 335, are said to support appellant's contention. Without discussing these decisions in detail, we have examined them and find that in the present case there is no such flagrant misconduct of the prosecutor or the witness as existed in the cited cases.
Stated conversely, the rule is that such cross-examination may not be utilized for the primary purpose of discrediting the person on trial. State v. Bozovich, 145 Wn. 227, 259 P. 395.
hen it fashions rules of evidence for use in the search for truth. The cause of death may be established in a prosecution for unlawful homicide without the use of expert medical testimony where the facts in evidence are such that every person of average intelligence would know from his own experience or knowledge that the wound was mortal in character. Waller v. People, 209 Ill. 284, 70 N.E. 681; State v. Rounds, 104 Vt. 442, 160 A. 249. See, also, in this connection: S. v. Peterson, supra; S. v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; S. v. Johnson, supra; Brundage v. State, 70 Ga. App. 696, 29 S.E.2d 316; James v. State, 67 Ga. App. 300, 20 S.E.2d 87; Brown v. State, 10 Ga. App. 216, 73 S.E. 33; Commonwealth v. Sullivan, 285 Ky. 477, 148 S.W.2d 343; People v. Jackzo, 206 Mich. 183, 172 N.W. 557; Franklin v. State, 180 Tenn. 41, 171 S.W.2d 281; Mayfield v. State, 101 Tenn. 673, 49 S.W. 742; Lemons v. State, 97 Tenn. 560, 37 S.W. 552; McMillan v. State, 73 Tex.Crim. 343, 165 S.W. 576; State v. Bozovich, 145 Wn. 227, 259 P. 395. There is no proper foundation, however, for a finding by the jury as to the cause of death without expert medical testimony where the cause of death is obscure and an average layman could have no well grounded opinion as to the cause.
"`The safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial discharge of public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can hope for. Their devotion to duty is not measured, like the prowess of the savage, by the number of their victims.' "See, also, the following: Snider v. Washington Water Power Co., 66 Wn. 598, 120 P. 88; Rogers v. Kangley Timber Co., 74 Wn. 48, 132 P. 731; State v. Arnold, 130 Wn. 370, 227 P. 505; State v. Bozovich, 145 Wn. 227, 259 P. 395; and State v. Heaton, 149 Wn. 452, 271 P. 89." In civil cases, we have long since adopted the salutary rule that improper conduct on the part of counsel calculated to prejudice the minds of the jury is ground for granting a new trial.