Montgomery v. State

• Decision Date: 09 September 1947
• Docket Number: 15915.
• Citation: 44 S.E.2d 242,202 Ga. 678
• Parties: MONTGOMERY v. STATE.
• Court: Georgia Supreme Court

44 S.E.2d 242

202 Ga. 678

MONTGOMERY v. STATE.

No. 15915.

Supreme Court of Georgia

September 9, 1947

Syllabus by the Court.

The evidence failed to show beyond a reasonable doubt that the child claimed to have been murdered was born alive and had a separate and independent existence from its mother; hence there is no proof of the corpus delicti, and the court erred in overruling the motion for new trial.

The indictment in this case alleged that the defendant killed and murdered her own unnamed infant child by striking, cutting beating and stabbing the child with 'a certain piece of glass, knife and other sharp instrument, the exact nature of which is unknown to the grand jury.' After a conviction of murder, with a recommendation, the defendant's motion for new trial, containing only the usual general grounds, was overruled and she excepts.

The evidence for the State was in substance as follows:

Thedford Barrett testified that he had found a dead baby; and had reported this fact, but was not present when its body was removed.

Joe McMaken, a police officer, testified that he removed the body; that he arrested the defendant; and that she at first denied having the baby at the place where it was found, but later admitted having the child, but did not admit that she cut its throat.

J C. Sanders, Bud Hicks and Corrine Riley testified to seeing the defendant at or near the place where the body of the child was later found.

Frank Russell testified that the defendant admitted having the baby; and that she said that she was not married and did not want her mother to know about it. Russell further testified that the defendant said that she did not know whether the child was a boy or girl; that when the child was born she 'just left it there;' and that he did not 'make any threats to her or offer her any hope of reward * * * she made this confession voluntarily.'

Dr Lee Battle, County Physician for Floyd County, testified after his qualifications were admitted by counsel, in full as follows: 'Yes sir, I had an occasion to examine the young baby said to have been found in the toilet down at Lindale. It was a negro baby. Well, it had a cut in its throat about four or four and a half inches long from one side to the order. The jugular vein wasn't exactly severed in two, but it was cut. Apparently, the baby bled to death. The cord was not tied--it was cut and left untied. Apparently some sharp instrument was used to cut the cord or neck. Yes, sir, I made a post mortem examination of the baby's lungs and in my opinion the baby had breathed. It is not possible for a baby to breathe in the process of birth unless it was born alive. That would prove it was born alive. It was not a still brith. Yes, sir, the child might breathe after its head had come out of the body of the mother, and still be attached to its mother; and it might die before the birth of the baby was completed. The fact that it breathed does not prove that it was ever born alive; though the head was born alive that does not prove that the entire body was born alive. [Italics ours.] No, sir, I did not say that the cut on the neck was a sort of ragged cut and looked like it was cut with a dull instrument. I said it was cut with a sharp instrument, and it was from here to here (witness indicating with hands). The jugular vein was not completely severed. No, sir, that cut could not have been made by the cord of the baby. It had to be done by some instrument. The heart beat enough for the child to breathe. I don't know how long it stayed attached to its mother; I could not say the child's heart ever beat after it separated from its mother completely. [Italics ours.] A baby always has independent circulation of blood after it leaves its mother-- but ofter it completely left its mother, I don't know whether the circulation stopped or not. [Italics ours.] Yes, sir, if it bled, that would indicate that the blood was circulating. As to whether or not it circulated after it completely left its mother--well, it bled to death. No, sir, if it was destroyed in the process of birth, you could not say that this child ever had a blood circulation after it was completely born. There were no indications that the child was destroyed in the process of birth. It was a normal infant. So far as I'm concerned, it is impossible for a child to be cut like that in the process of birth. It could have happened--it could have been cut during the process of birth, but that was no accident.'

The defendant made a statement in which she admitted giving birth to a child, but denied that she killed it.

M. G. Hicks, of Rome, for plaintiff in error.

E. J. Clower, Sol. Gen., of Rome, Eugene Cook, Atty. Gen., and Margaret Hartson, of Atlanta, for defendant in error.

HEAD, Justice (after stating the foregoing facts).

It is conceded by the solicitor-general in his brief on behalf of the State that the first question for determination is whether or not the evidence is sufficient to show that the child alleged to have been murdered 'was born alive and had an independent and separate existence from its mother.' The evidence relied upon to establish life is that of the physician who examined the body of the infant. Apparently this examination was made several days after birth. It support of the contention that the physician's testimony was sufficient to establish that the child was born alive and had an independent and separate existence from its mother, counsel quotes from the physician's testimony as follows: 'Apparently the baby had bled to...