Hignett v. State, 31965
| Decision Date | 15 June 1960 |
| Docket Number | No. 31965,31965 |
| Citation | 170 Tex.Crim. 342,341 S.W.2d 166 |
| Parties | Joseph Leroy HIGNETT, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Leland D. Sutton, Abilene, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is assault with intent to murder with malice; the punishment, 15 years.
A prior trial resulted in a conviction with punishment assessed at 10 years. Such conviction was reversed because the state called appellant's wife as a witness against him. Hignett v. State, Tex.Cr.App., 328 S.W.2d 300.
The indictment alleged that the assault was made upon Barbara Lynn Hignett.
The evidence shows that Barbara Lynn was the three months old baby daughter of appellant.
Dr. Willis J. Bray, an Abilene physician, whose qualifications were stipulated, testified that he examined Barbara Lynn in the Emergency Room at Hendrick Memorial Hospital about three o'clock in the morning of January 9, 1959, and found multiple bruises over the right side of her forehead, face and chest, and over the left thigh and above both ankles; found the femur or thigh bone fractured in the middle; found 'marked swelling of both legs, below the knees, such that the skin was absolutely strutted just as tight as it would go'; found actual bone separation or fractures of the legs below the knees, particularly the left; found fracture of the bone of the upper left arm; found fractures of at least four ribs on the right and some minute irregularities at the distal end of the thigh bones.
Dr. Bray judged from the appearance of the injuries that they were a day or two old, and testified that injuries of such nature could have caused death, there always being 'a certain amount of bleeding of vessels internally in case of a fracture and the general rule, the more displaced the fracture is the more hemorrhage and soft tissue injury there is associated with the fracture.'
The doctor testified that the child was in traction six weeks.
On cross-examination Dr. Bray explained there are two ways to cause death. 'One is by injury to a vital spot; a brain injury; an injury to the chest that will interfere with the breathing; an injury to an internal organ; heart; something of that kind.
'Then, there are those injuries that are multiple, less than vital but of such an extent that they would cause enough loss of blood in the tissues to cause death.'
Later in the trial Dr. Bray testified that it would have taken a hard blow to have caused the injuries he found on the baby. He also testified that if a person was not prevented by some means from carrying out his intent to kill a small child it would be an easy thing to do.
City Detective F. S. Isbell testified that he talked to appellant at the hospital about the baby's injuries and appellant said she fell off of a chair, but that later, after he was arrested and taken to the police station, appellant made a statement which was reduced to writing and was introduced in evidence.
The statement contains appellant's confession that in the afternoon while he was alone with the baby he put his finger down her throat when she burped or vomited; that he slapped her on the face, on the arms, legs and butt; also 'I just hit her and hit her a lot of times.'
Appellant did not testify, but called his wife as a witness. She testified that except for a small bruise on her head, she first noticed bruises on the child shortly before she took her to the hospital, though she bathed and dressed her and had seen her almost constantly during that day and the day before.
It was the wife's testimony that the baby was pulled off the bed by a three year old boy who 'was trying to love her' the morning before she was taken to the hospital that night.
On cross-examination appellant's wife was permitted to testify over objection that she told the district attorney that appellant told her not to tell people what really happened but to say that the child fell off a chair. Also over objection the wife was asked and answered:
It is contended that the evidence is insufficient to establish the corpus delicti or to prove an intent to kill or to prove malice.
We recognize the rule that the confession of the accused alone is not sufficient proof that a crime has been committed. Ellison v. State, 59 Tex.Cr.R. 3, 127 S.W. 542. However, the confession may be used in connection with other facts to establish the corpus delicti. Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559, and cases cited including Kugadt v. State, 38 Tex.Cr.R. 681, 44 S.W. 989; Whitaker v. State, 160 Tex.Cr.R. 271, 268 S.W.2d 172.
As we understand the evidence, the facts warranted a finding that the child's injuries were caused either by falling on the floor after being pulled off a bed by a neighbor child, on the morning of January 9, or resulted from an assault upon the baby by appellant when he was left alone with her on January 7, as shown by his confession.
Aided by the confession and the nature and extent of the injuries and by appellant's false explanation, we conclude that the evidence is sufficient to sustain the finding by the jury that the baby's injuries resulted from an unlawful assault by appellant.
In view of the tender age of the child, the nature...
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