¶1dissents.
¶2I agree with the majority that the trial judge has grown old and skilled through experience and therefore qualifies as a veteran, that the case was well tried (except for applying the law to the facts), and that those who sin or err “by two and two must pay for one by one.” However, I dissent from the majority opinion because I believe that, as a matter of law, the death of Oscar M. Melvin was not proximately caused by the defendants’ actions. “|T]f defendant did not cause the death of decedent, within the rules of legally-recognized causation, he cannot be convicted of homicide even if he committed an assault and battery upon that person and is subject to conviction upon a charge of this lesser offense.” Perkins, Criminal Law (2d ed. 1969) at 727.
¶3First, as explained by Professor Perkins, “[conceivably a different set of proximate cause might be established for each particular crime. This has not been done, but since the degree of moral obliquity exhibited by the act, and the extent of the social menace involved, are factors to be considered, the result will not *686necessarily be the same for all offenses. In particular, the legal eye reaches further in the examination of intentional crimes than in those in which this element is wanting, such as involuntary manslaughter.” (Emphasis supplied.) Perkins, supra, at 693. See also, La Fave and Scott, Criminal Law (1972) at 252 (“cause and result crimes of intention must be treated separately from those of recklessness and negligence.”)
¶4Second, while foreseeability generally has no application to the issue of proximate causation in criminal cases, the exception to this rule arises when there is an independent intervening cause or a dependent intervening cause in the form of an abnormal response of a human being. Perkins, supra, at 726. Consequently, “if defendant’s act created merely a condition, and the actual harm resulted from an ‘independent’ cause, or an abnormal response by man . . . the issue of proximate cause is dependent upon whether or not such harm . . . was a foreseeable risk of the condition created by the defendant.” Id. In this case, the medical doctor testified that the cause of death was the result of the decedent’s inhaling his own vomitus, and that he had no opinion as to whether the defendant’s blow caused the vomiting. Further, the malfunction of the gag reflex was due to the decedent’s excessive consumption of alcohol. I do not think that the defendant could have possibly foreseen that the decedent would drown in his own vomitus when a medical doctor has testified that he had no opinion as to whether defendant’s act would cause vomiting. “In jure non remota causa sed próxima spectatur” (in law not the remote cause but the proximate cause is regarded.)
¶5Third, when the force which was set in motion by defendants has come to a position of apparent safety or when the victim has reached a place of apparent safety, and death results from another cause, the acts of the defendants will not be the proximate cause of the decedent’s death. See, State v. Preslar, 48 N.C. 421 (1856); Perkins, supra, at 696-97. See, also, People v. Elder, 100 Mich. 515, 59 N.W. 237 (1894) in which it was held that one who knocks another down is not the proximate cause of death which resulted when another bystander took advantage of the helpless situation of the victim to administer a fatal kick.
¶6Finally, “courts have tended to distinguish cases in which the intervening act was a coincidence from those in which it was a *687response to the defendant’s prior actions. An intervening act is a coincidence when the defendant’s act merely put the victim at a certain place at a certain time, and because the victim was so located it was possible for him to be acted upon by the intervening cause. ... By contrast, an intervening act may be said to be a response to the prior actions of the defendant when it involves a reaction to the conditions created by the defendant. [A] coincidence will break the chain of legal cause unless it was foreseeable. . . .” La Fave and Scott, supra, at 257-58. The medical doctor could not state that the vomiting was a response to defendant’s blows. The vomiting was, rather, coincidental to the defendant’s act and was therefore not the proximate cause of the decedent’s death.