Opanowich v. Com.

• Decision Date: 08 September 1954
• Citation: 196 Va. 342,83 S.E.2d 432
• Parties: VIOLA OPANOWICH v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Supreme Court

Page 432

83 S.E.2d 432

196 Va. 342

VIOLA OPANOWICH v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Appeals of Virginia

September 8, 1954.

William C. Nemeth, Leonard S. Sattler and John G. Drake, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and Francis C. Lee, Assistant Attorney General, for the Commonwealth.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

The defendant, Mrs. Viola Opanowich, has been sentenced to serve twelve years in the penitentiary for killing her infant son, pursuant to the verdict of a jury finding her guilty of murder in the second degree. She asks us to reverse and set aside the judgment of conviction as contrary to the law and the evidence. More specifically, she contends that the evidence did not establish the corpus delicti, that the trial court erred in admitting and rejecting certain evidence, and in granting an instruction defining the several degrees of homicide.

The evidence of the Commonwealth showed the following facts and circumstances:

On February 5, 1953, Mrs. Opanowich gave birth to a male child at her home, 1115 South 18th Street, Arlington, Virginia. She was alone and unattended.

Julius E. Sherr, who lived in Washington, D.C., testified that he had known the defendant for about four years. He said that on February 11, 1953, he had two telephone conversations with her. She called him about a quarter to eleven a.m., and after conversing for a while she hung up the telephone, saying somebody was listening on the line, and calling him back a short time thereafter. She told Sherr she wasn't feeling so good; that she had had a baby and hadn't slept for two days; and that the baby was sick. He said he did not know she was married, and said to her, 'Let's get married.' She replied that there were too many technicalities. She appeared to him to be very excited. She told him the baby weighed about eight pounds, was a week old, and perfectly normal. She said the baby drank all of her milk, was crying all the time, and took all of her strength. She said that she did not want the baby, and was going to throw it in the furnace. He told her not to do that, that he would come over and get it. She said that he could come; but quickly changed and said 'Don't,' because his coming might attract attention. She said Peter, her husband, would help her out.

The next day, Thursday, February 12th, she again called Sherr, and asked him for some money. He asked her if everything was all right, and she said 'Yes.' She then told him, 'We have got to get rid of it,' the baby. He sent her $30, the receipt of which was acknowledged by her in a telephone conversation about 5:30 a.m. on Friday, the 13th. In another conversation on Friday, he called her and asked her if she wanted him to come over to her home to live. She replied that he could do so. He moved into her house in March, 1953, and still lived there at the time of the trial in May, 1953.

Mrs. Marion Lowe, a daughter of the defendant, and a resident of near-by Alexandria, testified that her mother called on the telephone on Tuesday, February 10th, and told her she had given birth to a baby boy. She thought her mother then seemed pleased; but when she called her again on the morning of February 11th, she appeared to be emotionally upset. On the second call, she said the baby was sick, and that she was trying to do all she could for it. They had some conversation about clothes for the baby. Mrs. Lowe went by automobile to her mother's home that evening about eight o'clock, taking two suit cases of infant clothes with her. She got out of the car, went to the porch of her mother's home, her mother came out of the house, and told her the baby was dead. Mrs. Opanowich said that she had not called in a doctor for fear that some issue might be raised over the fact that she was unattended when the baby was born, and had made no report of the birth. The defendant asked her daughter for help. Mrs. Lowe said she refused at first; but when it seemed to her that her mother needed aid she consented. Mrs. Opanowich then went downstairs in her house, and came out through the driveway bringing with her a package tied with a string. She got in the car, put the package in a basket, and the two women drove around aimlessly for sometime. It was cold and there was a hard rain. Finally, they came to a field, the daughter stopped the car, Mrs. Opanowich got out, took the package with her, and left it in the field. Mrs. Lowe did not hear any noise coming from the package.

Mrs. Margaret Cutcomb, who lived next door to Mrs. Opanowich, over the objection of the defendant, testified as to certain conversations she overheard on the telephone. Mrs. Cutcomb's telephone was on a two-party line, the defendant being the only other person having that line. The witness said that she did not know the defendant and had never seen her.

Mrs. Cutcomb testified that on February 11th, 1953, she twice heard telephone conversations between two persons, one bearing the name of 'Viola' and the other the name of 'Julius.' She recognized the voices as those of the same two parties whom she had overheard on the telephone every day since the preceding November. On one prior occasion, she had heard the voice she identified as that of 'Viola' call a store and order dog food, giving her full name and address as: 'Viola S. Opanowich, 1115 South 18th Street, Arlington,' the residence of the defendant. On another occasion, she had heard the same voice give her name as 'Viola' and heard her address the person to whom she was speaking as 'Julius.' She identified the voice of the man speaking on February 11th as that of 'Julius.'

Mrs. Cutcomb took notes of the conversations on February 11th, and, referring to her notes, stated that the voice she identified as that of 'Viola' said during the first talk, shortly after 11:00 a.m.: 'Something terrible has happened. I can't tell you. ' Julius asked: 'Are you pregnant?' She replied: 'Worse, a baby.' He said: 'Mine?' She said: 'Yes.' Viola told him the baby was six days old, a perfectly normal boy, and weighed about eight or nine pounds, and said: 'What are we going to do? We will have to get rid of it. ' He replied: 'This is all of a sudden. I don't know what to do. Does Pete know? ' She replied: 'Yes, he knows about the baby, but not about you. ' Julius asked about coming to her home and the means of getting there. She told him to 'take a cab or something.' The defendant then told Julius she couldn't stand it any more; that she had to nurse the baby day and night; and that he would have to come when Pete was away between five and two o'clock. She said her daughter, Mrs. Lowe, was going to come over that night, and he asked if he couldn't meet Mrs. Lowe somewhere and 'take the baby and she could drop me. ' She told him not to do that. He then suggested that he would come over on the bus, take the baby in a basket, go to the police, and tell them that he had found it. She said that she did not have a blanket or basket. She refused to let him call a doctor or to come and get the baby, saying 'You will have to give your name. * * * No, it would cry and you would have to suffocate it first.'

On the second call Viola said to Julius that she 'shouldn't have called him in the first place' and that she 'could take care of it.' He asked: 'How are you going to do it? ' She told him: 'I can do it.' She then said: 'There he is crying. Do you want to hear him cry?' Julius said: 'No,' at first; but then said: 'Yes, let me hear him.' Mrs. Cutcomb heard the sound of the baby crying. When the crying stopped, Viola explained: 'Now I am nursing it.' Julius laughed. Viola said: 'This isn't funny. What are we going to do? We have got to get rid of it. ' He said: 'How?' She said: 'Oh, throw it in the furnace or something.'

During the conversation Mrs. Cutcomb heard Julius suggest that he and Viola get married. She gave him a negative answer, setting out an indefinite reason for her refusal.

The witness further testified the defendant informed Sherr that her daughter was going to inform the latter's husband about the birth of the baby; tell him that a doctor had been called; that the doctor came; that they went to the hospital; and that the baby was born dead.

The Police Department, having been informed of the telephone conversations overheard by Mrs. Cutcomb, made an investigation. Doris K. Beiswanger, a policewoman, and William Dinsmore, a police detective, went to the defendant's home between 4:00 and 5:00 p.m. on February 13th. They asked her about the baby, and she admitted its birth. They then asked her if it had been put in the furnace, and she said 'Yes.' The policewoman accompanied the defendant in an ambulance to a hospital. On the trip, the defendant asked: 'What are they going to do, give me the chair? ' The policewoman said she couldn't answer the question. Thereupon, the defendant said: 'Oh well, I have lived a full life. I am not afraid of death.'

The above officers and Walter Kadel, another police detective, testified to several conversations had with the defendant. She gave them vague and misleading answers; but repeatedly said that she had placed the body of the infant in the furnace. She also voluntarily gave them a signed written statement to the same effect. The officers sifted the ashes in the furnace; but found no evidence of human remains. They then interviewed Mrs. Marion Lowe, who told them of the actions of herself and mother on the evening of February 11th, and of the place where the defendant had left a package. The officers then went to the designated place, and there in a thicket of weeds and honeysuckle found the body of the baby. It was wrapped with several sheets of newspaper and placed head down in a brown shopping bag.

The defendant told the officers that her child was born on February 5th; that it weighed about six pounds, its legs were deformed, and it lived a short time,...