People v. Foley

• Decision Date: 13 January 1887
• Citation: 31 N.W. 94,64 Mich. 148
• Court: Michigan Supreme Court
• Parties: PEOPLE v. FOLEY.

31 N.W. 94

64 Mich. 148

PEOPLE v. FOLEY.

Supreme Court of Michigan

January 13, 1887

Error to circuit court, Clinton county.

Information for murder.

The Attorney General, for the State.

S.B. Daboll, (Isaac Marston, of counsel,) for plaintiff in error, Foley.

SHERWOOD J.

This case was an information for the murder of an infant child about two and one-half months old, during the night of the eleventh day of June, 1885, at Lebanon, in the county of Clinton. The respondent is the father of the child alleged to have been murdered. The testimony in the case tends to show that the child was well and healthy on the evening before it died; that on that night the respondent and his wife went to bed about 10 o'clock,--first, however, putting the child in question, and its twin brother, in the crib together which stood in front of the bed, and about eight inches therefrom; Mrs. Foley slept upon the front side of the bed and the respondent on the back side, and which was next to the wall; that no one but respondent and his wife and the twin children stayed in the house that night,--the house being locked up before respondent and his wife retired; that the respondent arose first in the morning; that it was then about 6 o'clock, went to the crib, found the children lying as placed the night before, and both were dead; that there was no evidence of the house having been entered by other persons during the night, but the children's persons bore evidence of personal violence, and, when first discovered in the morning, their faces were bloody,--the blood proceeding from the nose and mouth of each child. Their skulls had also apparently been crushed. After the children had been buried four days, the bodies were disinterred, and a post mortem examination had. About this time the respondent was arrested, charged with the crime of murdering the child whose name was Edward Foley, and described in the testimony as the larger of the twins.

Upon the trial of the cause it was the theory of the prosecution that some time in the night of the terrible tragedy the respondent left his bed, went to the crib containing the infants, and there killed them both by crushing their heads and compressing their mouths and nostrils until strangulation became complete and life extinct.

The respondent pleaded not guilty to the information; but, if he had any theory by whom or in what manner the death of the child Edward was caused, it is not apparent in the record. He was sworn upon the trial, and gave his testimony, the substance of all of which appears in the record. Nowhere in his evidence, however, does he, except inferentially, deny the commission of the homicide; and, while he intimates the child died from natural causes, the mother had the impression some one had "murdered her baby boy." The cause was tried in the Clinton circuit, and the jury found the respondent guilty of murder in the second degree. The court sentenced him to imprisonment during life. His counsel now ask a review of the case in this court. Seventeen errors are assigned.

The seventeenth assignment of error is based upon the defendant's fourth request to charge the jury "that the circumstances may create a probable ground for presuming guilt; but each and every circumstance, severally or united, are no more than inconclusive probabilities, and do not warrant conviction." This, substantially, would require the court to direct the verdict of the jury.

There were several medical men examined as experts. Their testimony was clear and intelligent, and to the effect that the death of the child Edward was caused by external violence, resulting in asphyxiation and injury to the brain. The fact that the children were killed by some one was not much contested upon the evidence.

There were circumstances testified to, and not controverted by the defendant, strongly tending to establish the charge made against the respondent, and we think the sufficiency of the proof was properly submitted to the jury, and the court was correct in so ruling.

The first and second assignments of error relate to hypothetical questions put to Dr. Topping. The question will be found at the foot of this page. ^[1] After repeating the facts contained in the statement, the question then added was, first: "What, in your opinion, caused the death of the child;" and the second question, based upon the same hypothesis, was: "In your opinion, is there any disease which would produce death, accompanied by the conditions [[[[stated in the hypothetical question] in an infant healthy and all right in every respect at birth?" These questions were objected to on the following grounds, as stated by defendant's counsel: "(1) That the post mortem examination by Gilliam and Weller was made without any notice to the father of Edward, the accused; (2) the post mortem examination of Edward Foley was made without giving Thomas Foley, the father of Edward Foley, notice to be present; (3) that said post mortem was not made in accordance with the statutes of this state, and in violation thereof; (4) that there was no inquest held over the body of Edward Foley; (5) and that the testimony of Drs. Gilliam and Weller, at that time, showed that an autopsy was not made upon all the parts of the body, and was irregular and invalid; (6) that the hypothetical question does not take into account all the conditions of the body, as testified to by the witnesses when they came there on the morning, and immediately after the night when they claim the death occurred; further, that it is not in accordance with the testimony of Dr. Gilliam given in the case, or with his examination reduced to writing and filed in the case, and made a part of the original examination." The objection was overruled by the court, and the doctor was allowed to answer the question.

To the first question he answered: "I would give it as my opinion that the child died from asphyxiation, or from the form of it denominated suffocation, aided by extensive injury of the brain." And to the second question he answered: "I know of no disease which would produce death with those symptoms." He also testified that, in his opinion, the injury to the head was "made before death." We are unable to discover any error in allowing these questions to be put, and in receiving the answers given. The facts contained in the hypothesis were fully supported in the testimony given, and the questions were both relevant and competent. The learning and ability of the physician was unquestioned.

I fully agree with the counsel for the respondent in this case that the expert testimony of physicians was of very great importance, and that the answers to the hypothetical questions asked, and the weight given them by the jury, were dependent upon the jury's finding the facts assumed in the question to be true. The charge of the court was full and faultless upon this subject; but, notwithstanding the care and circumspection of the court exercised upon this point, it is possible, as suggested by counsel, that the jury found difficulty in determining what facts were derived from the post mortem of Edward, as distinguished from those in the case of the other child, and which were contained in the hypothetical questions.

The testimony shows, I think, that the circumstances of the death, and the manner in which it was accomplished, were so nearly the same in the case of both infants that the respondent could not have been prejudiced in the case from the cause suggested. The jury found that the child Edward did not die a natural death, but was feloniously killed; and, if such was the fact, I think there can be no question upon this record but that the other child came to his death on the same occasion, by the same hand, and in the same manner. However this may be, I know of no reason, nor is any made to appear in this record, why the jury in this case, under the clear and impartial charge given by the court, were not capable of discriminating as to what facts related to Edward and what to the other child.

In regard to the testimony relating to the other child, the circuit judge charged the jury as follows: "And here gentlemen, I call your attention to some evidence in the case as to the appearance, the morning of the 11th, of the other child, and also as to the post mortem examination of the body of the other child. That evidence is not in this case for the purpose of showing that the respondent is guilty of another crime; for, if he was, it should have no weight in this case. He is not to be convicted of the crime...