Bennett v. State

• Decision Date: 11 January 1963
• Docket Number: No. 3087,3087
• Citation: 377 P.2d 634
• Parties: Ruth liene BENNETT, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 634

377 P.2d 634

Ruth liene BENNETT, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 3087.

Supreme Court of Wyoming.

Jan. 11, 1963.

Mrs. Brooke Wunnicke, Cheyenne, and Joseph F. Maier, Torrington, for appellant.

Norman B. Gray, Atty. Gen., W. M. Haight, Deputy Atty. Gen., and George J. Argeris, Asst. Atty. Gen., Cheyenne, Stanley K. Hathaway, County and Pros. Atty., Torrington, for appellee.

Before PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

The defendant, Ruth Ilene Bennett, was convicted of manslaughter in connection with the killing of her newborn baby. On appeal to this court she contends the evidence failed to prove the corpus delicti beyond a reasonable doubt.

To establish the corpus delicti in a prosecution for the killing of a newborn child two elements must concur. These elements are (1) that the infant was born alive and (2) that death was caused by the criminal agency of the accused. These ingredients of crime must be proved beyond reasonable doubt and can be established by direct or circumstantial evidence. People v. Ryan, 9 Ill.2d 467, 138 N.E.2d 516, 518; State v. Osmus, 73 Wyo. 183, 276 P.2d 469, 476; Annotation 159 A.L.R. 523.

First Element--Born Alive (A Human Being)

Dr. W. O. Brown of Scottsluff, Nebraska, the pathologist who performed an autopsy on the body of the dead baby, testified the child was a full-term and fully-matured infant. Dr. H. B. Rae, county health officer of Goshen County, also testified the baby was fully and normally, developed and a full-term infant. In addition, Dr. Brown expressed the opinion from his examination and tests that the child was born alive. The basic reason for his opinion was that there was quite adequate evidence the child had breathed. He said the most reliable indication as to whether a baby was born alive is whether it has breathed or not.

There is quite a respectable line of authority for the proposition that it is not sufficient in infanticide cases to prove the child breathed but that an independent circulation and existence of the child must be shown. See Annotation 159 A.L.R. 523, supra. In that connection attorneys for Mrs. Bennett suggest that foremost in persuasiveness is the Wyoming case of State v. Osmus, supra.

They argue that the decision in the Osmus case follows this line of authority and that Wyoming has committed itself to the proposition that proof of an independent circulation and existence of the child is necessary in cases such as the one here involved. We find nothing in the decision, however, which would warrant an assumption that such a position has been taken for our jurisdiction, and it would appear the attorneys are reading something into the opinion which is not in fact there.

The author of the Osmus-case opinion, Chief Justice Blume, at 276 P.2d 476, noted that the courts in England have struggled with the question involved for centuries. He also mentioned the annotation in 159 A.L.R. 523 wherein it is shown that it is necessary to prove both that the infant was born alive and that death was caused by the criminal agency of the accused. He then commented that we shall 'cursorily' examine the first of these requirements.

After such an examination and without deciding whether the first requirement had been met, the writer said let us not linger any longer in discussing the foregoing requirement; let us 'assume' there was sufficient evidence to show the infant was born alive and pass to the question as to whether the evidence shows beyond a reasonable doubt the defendant was the criminal agency in killing the infant. The conclusion of the court on this latter question was that either the infant died of natural causes, or at least that the testimony failed to show the contrary. The case was reversed for that reason and not for failure to prove a live birth.

But we are now concerned with what was said in the Osmus case regarding the requirement of proof that the child was born alive. In the court's cursory review with respect to this requirement, a quotation was made, without approval or disapproval, from 2 Wharton's Criminal Evidence, § 874 (11th Ed.), to the effect that in infanticide an independent circulation and existence of the child must be shown, and the fact of the child having breathed is not 'conclusive' proof that it was born alive. A quotation to the same effect, still without approval or disapproval, was also made from People v. Hayner, 300 N.Y. 171, 90 N.E.2d 23, 25.

Following these quotations, Justice Blume pointed out we have not had any satisfactory answer to the question, either out of medical books or in the cases that have been considered by the courts, as to when an independent circulation exists.

This comment of the Chief Justice becomes particularly significant in the case now before us because appellant complains of the refusal of the trial court to give an instruction to the jury containing the following language: 'It is the law that an independent circulation and existence of the baby must be proved, and the fact of the baby having breathed is not conclusive proof that it was born alive.'

The proposed instruction would be confusing to a jury because it gives not standard for determining when an independent circulation exists. Moreover, 'conclusive proof' is not to be required with respect to any of the elements of the offense charged. See Singleton v. State, 33 Ala.App. 536, 35 So.2d 375, 378.

In the instant case, the propriety of refusing the instruction offered is pointed up in an answer made by Dr. Brown to a question as to whether he had any knowledge that would indicate whether this child had established an independent circulatory system. His response was, 'What do you mean by 'independent circulatory system'?'

Thus, it was apparent an expert witness could not know what lawyers and courts might or might not mean in speaking of an independent circulation and existence of the baby. And yet, the witness was a doctor of medicine with a specialty of pathology. In addition to postgraduate work and 21 years of practice in his specialty, he had for several years been Associate Pathologist at the University of Illinois and had taught at a school of medicine. During the practice of his specialty, he had performed between 5,000 and 6,000 autopsies including approximately 1,000 upon babies. Some of these autopsies had involved determinations as to whether or not the bady had been born alive.

If, as Chief Justice Blume pointed out in the Osums case and Dr. Brown indicated in his testimony in this case, there is no satisfactory answer to the question as to when an independent circulation exists, then it could not be expected that a jury could pass upon that question, at least without specific advice as to when such a circulation does exist. On the other hand, the essence of the issue we are discussing is whether the child was born alive. In that regard the jury was clearly instructed that the state is called upon to prove beyond a reasonable doubt that the child was born alive.

Whether the baby involved in this case was born alive was a question of fact for the jury, and the opinion of the autopsy physician was evidence which could be considered by the jury. People v. Chavez, 77 Cal.App.2d 621, 176 P.2d 92, 95. Dr. Brown was definite and positive in his testimony and testified without qualifying his opinion that 'It [the child] was born alive.' Being asked whether there was any doubt in his mind that the baby was born alive, he answered 'No.' Also, as we have already mentioned, both he and Dr. Rae described the child as a full-term and fully-matured infant. In addition, the evidence showed that a woman's stocking was wrapped twice around the neck of the child and tied tightly in a knot. Dr. Brown said the stocking was very tight--so tight that it produced deep gouges in the tissue of the neck and completely obstructed the windpipe.

The pathologist followed through from the outward signs of this stocking, in his autopsy examination of the neck, and found a very marked constriction of the soft tissue of the neck with complete collapse of the windpipe under the stocking, so that the windpipe was completely constricted. He said it would have been impossible for the child to have breathed after the stocking was placed around its neck and in his opinion it died from asphyxiation produced by the strangulation. Here too, the doctor had no doubt in his mind that the baby died of strangulation.

Circumstantial evidence may be used to prove both the corpus delicti and the connection of the accused with a crime. 22A C.J.S. Criminal Law § 604, p. 410. The jury then, in the instant case, would be justified in believing, if it chose to do so, this child had been born alive or otherwise there would have been no reason for the efforts to strangle it. See Jackson v. Commonwealth, 265 Ky. 295, 96 S.W.2d 1014.

Admitting there could be a possible doubt with respect to this phase of the case, we cannot agree there was necessarily a reasonable doubt. The evidence on a whole was sufficient to justify the inference that the baby here involved had been born alive and had become a human being. The jury's implied finding to that effect rests upon a factual basis and not upon speculation.

Second Element--Criminal Agency

Proof that the death of an infant was brought about by the criminal agency of the accused usually cannot be established by direct evidence. In most cases this element of the corpus delicti must be proved by circumstantial evidence. Annotati...