Morgan v. State
| Citation | 256 S.W. 433 |
| Parties | MORGAN v. STATE. |
| Decision Date | 07 December 1923 |
| Court | Tennessee Supreme Court |
Appeal from Circuit Court, Grainger County; Jas. L. Drinnon, Judge.
Thurl Morgan was convicted of murder in the second degree, and he appeals. Reversed and remanded for a new trial.
W. N. Hickey, of Morristown, and W. G. Corum, of Rutledge, for Morgan.
Charles L. Cornelius, Asst. Atty. Gen., for the State.
The plaintiff in error was indicted for the murder of an "unnamed male infant child of Jennie Watson," and has been convicted of murder in the second degree, and has appealed in error to this court.
Jennie Watson is a young woman, unmarried, who lived in Grainger county. On the night of September 13, 1921, she gave birth to a child. Previously she and the plaintiff in error had maintained illicit sexual relations, although he denies that any of these acts occurred at a time that would have permitted of his being the father of the child.
The girl testified that, on the night her baby was born, she went out of the house clothed in her nightgown, with a percale dress thrown around her shoulders. Without going into the details, she said that plaintiff in error met her outside the house, and that they went a short distance to a place near her father's barn, where she gave birth to the child. According to her testimony, the plaintiff in error and no one else was present during her parturition, and he was guilty of acts of unspeakable brutality in an endeavor to hasten her delivery. She stated that she went back into the house a little while after the baby was born. She said that she never saw the infant, did not know what became of it, and did not know whether it was born dead or alive. About three days thereafter the body of a dead infant was found floating in a creek nearby. Its head was crushed as though it had been struck with or against some hard substance.
Considerable proof was introduced by the state tending to corroborate the girl's testimony, and much proof was introduced by the defendant tending to acquit him of participation in making away with this infant. As stated above, he admitted that he had in times past enjoyed the favors of the young woman, but testified that he was not the father of the baby, and denied that he was present when the child was born, and undertook to establish his presence at his own home, some three miles away, on the night in question.
We forbear a further discussion of the evidence, since the case must be reversed on account of the failure of the state to show that a murder was committed. In other words, there is no satisfactory proof that this baby was born alive.
After the body of the infant was recovered, what is called the hydrostatic test was employed in an effort to ascertain whether the child was born alive. That is to say, the lungs of the child were removed from the body, and placed in a vessel of water. If a baby has breathed, and there is air in the lungs, they will float, and ordinarily it can be determined in this way whether a baby breathed or lived after its birth. In this case the lungs did float, but it seems that decomposition had set in, and gas had formed in the child's body when it was found, and the medical testimony is that gas in the lungs would cause them to float just as air would.
Three doctors were examined, and two of them declined to express an opinion that this baby was born alive under the circumstances appearing. The other doctor did appear to think that the baby was born alive; that sufficient gas had not formed in the body to get into the lungs, but his testimony was by no means positive.
In this condition of the record, where proof of the corpus delicti depends altogether on the expert testimony, and that testimony is so unsatisfactory, we feel that we could not affirm the judgment below.
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