Ellison v. State

• Decision Date: 13 April 1910
• Citation: 127 S.W. 542
• Parties: ELLISON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 542

127 S.W. 542

ELLISON v. STATE.

Court of Criminal Appeals of Texas.

April 13, 1910.

Appeal from District Court, Caldwell County; L. W. Moore, Judge.

Emma Ellison was convicted of infanticide, and she appeals. Reversed and remanded.

Thos. McNeal, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was charged by indictment with the homicide of her own child; her punishment being assessed at life imprisonment.

There are quite a number of interesting questions suggested for revision, most of which, under the view taken of the case, we deem unnecessary to discuss. The state introduced what they relied upon as a voluntary statement of appellant before the examining trial, which is as follows: "On last Thursday night, about 8:30 o'clock, I went out in the mesquites near my father's house to answer a call of nature, and while there gave birth to a child. I was squatting down near a pile of ashes at the time, and when it was born I picked it up and placed it in the ashes, and raked some ashes over it, and left it lying there crying and whining, and went in the house. This is all I know about the matter." Lane, the constable, testified that he took the justice of the peace and found the body of a dead baby near the edge of a trash pile about 100 yards from appellant's house; part of the body of the baby was gone; that he could tell it was a full-developed child; that the body had been dragged out of the trash pile; that by the use of a lantern a place was found that looked like the child had been there, and some hair was raked out of the place; there seemed to be a little cave in the ashes. There had been rain just prior to this, and tracks from the house to the place and back to the house were found. The place where the body was found was between two roads, and near where they came together, about 30 steps from one and 40 or 50 steps from the other. Appellant was examined by a physician, and his testimony is to the effect that she had been recently delivered of a child. Bragg testified that he saw the body of the child and found a hole in the trash and ashes about 8 feet from the body; the hole was over a foot long and 6 or 7 inches deep; the body of the child was that of a good-sized baby. This witness did not know whether the baby had ever been alive or not. The body was found about 50 yards from a street. There were some mesquite trees, but the country in the main was open. Drs. Hendricks, Coopwood, and Ross testified that a child could be born alive and cry before it had been carried seven months. They further stated the earliest time at which a child can have its being and continue to live is seven months. Rowley testified, for defendant, that appellant cooked for him, and he noticed no difference in her size before and after she is said to have given birth to a child. The night on which it is claimed the child was born was that on which a storm was blowing, about the 23d of July, 1909. Sallie Ellison, mother of appellant, testified she remembered the storm, and that it was very severe, and blew down part of their chimney; that on that night she had a very sick daughter, who died, and was buried the following day. This daughter was younger than appellant, who was also her daughter. The storm raged all night. Appellant, on the night of the storm, would run from one room to the other where her sister was lying. Witness thought appellant would go crazy; that she was always a nervous child, was never bright and acted like she did not have good sense. Appellant attended the funeral of her sister, daughter of witness, the day after the storm. The record discloses that the lungs of the child were not examined to ascertain whether it had in fact lived or was born alive. There was no attempt to prove that fact, and in fact the evidence discloses, affirmatively, that no examination of this character was made to discover whether the child had in fact been born alive. The only evidence in the record in regard to this matter is the statement of appellant in what is termed a...