People v. Kirby

• Decision Date: 21 June 1923
• Docket Number: No. 137.,137.
• Citation: 194 N.W. 142,223 Mich. 440
• Parties: PEOPLE v. KIRBY.
• Court: Michigan Supreme Court

223 Mich. 440

194 N.W. 142

PEOPLE

v.KIRBY.

No. 137.

Supreme Court of Michigan.

June 21, 1923.

Error to Circuit Court, Lenawee County; Burton L. Hart, Judge.

Matie Kirby was convicted of manslaughter, and she brings error. Reversed, and defendant discharged.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Sharpe, Steere, and Clark, JJ., dissenting.B. D. Chandler, of Hudson, and J. N. Sampson, of Adrian, for appellant.

Merlin Wiley, Atty. Gen., O. L. Smith, Asst. Atty. Gen., and Leland F. Bean, of Adrian, for the People.

MOORE, J.

On the evening of July 4, 1921, Dr. Charles S. Lane was called to attend Alice Kirby, defendant's daughter. He made an examination which satisfied him that she was about to become a mother, which information he immediately imparted to her mother. There was conversation between the doctor and defendant relative to delaying the operations of nature until Alice could be gotten away. The doctor administered a hypodermic to Alice with the idea that nature might be delayed and Alice could be removed. The doctor returned to his office for his instruments. He made a second physical examination which satisfied him that she was to be delivered ‘right away.’ He observed on this visit that the opiate had taken effect and that the patient was under its influence. The defendant inquired of the witness as to the probabilities of the expected child being born alive, which inquiry the witness was unable, at that time, to answer. There was conversation between defendant and the witness to the effect that the child would not be born alive, and that if it was that it must be gotten away.

The doctor then left the Kirby home and returned in about 20 minutes. The expected child was born during the interval that he was absent. The doctor performed the usual functions of a physician, and rendered the necessary medical aid to both parent and child. The infant was handed to the defendant, who placed it in a basket on some clothes. At this time all the parties, including defendant, were in the same room. The infant was lying face down in the basket. On observing this the doctor said to defendant ‘the baby will smother in that position.’ Defendant replied, ‘Do you care?’ The doctor said that he did. The doctor placed the child in the basket in proper position.

The doctor next saw the infant about 10 or 15 minutes later in the same basket, but down in the basement. It was a very hot day. The doctor gave the infant the attention that it required, such as tying the navel cord, and left the premises, going out the back way, at request of defendant. The infant was alive when last seen by the doctor.

The doctor called at the Kirby home the next day but saw nothing of the baby. On this visit the doctor was informed by defendant that her husband had taken the baby away. A birth certificate was made out by the doctor and filed.

Bennett Houston, a witness for the people, testified that on the night of July 4, 1921, at about the hour of 12 p. m. while sitting on his porch at his home which was adjacent to the Kirby home, he heard the sound of a child crying. The fact that a child had been born to Alice Kirby became a matter of public knowledge. Complaints were made to the prosecuting officers of the county, which resulted in official action. Hartwell J. Shaw and Thomas B. Thurlby, deputy sheriffs of the county, went to the Kirby home in Hudson for the purpose of making investigations.

Hartwell J. Shaw, a witness for the people, testified that in company with Deputy Thurlby he visited the Kirby home on or about the 21st day of July, 1921; that on this visit defendant stated to him that the child was dead, and that her husband Charles had taken it away; that the child had not lived quite an hour.

We quote from the testimony:

‘I said to her then, ‘What ailed the child?’ She said that it had died through her neglect. She said, ‘You know that I couldn't take care of the child and my daughter too, and my daughter came first.’'

There was further conversation in which the defendant again stated that the child was dead.

Thomas B. Thurlby, who accompanied Shaw, a witness for the people, testified to substantially the same conversation. His version is as follows:

‘Why, she said that it had died from neglect, and I asked her, whose, and she said, ‘From my own neglect because I couldn't take care of the child and its mother too.’'

Defendant's daughter, Alice, was present when the conversation took place, and her version of what was said differs somewhat from the statements made by witnesses Shaw and Thurlby. She was sworn as a witness for the people, and testified that Shaw said to the defendant, ‘Then tha baby must have died from neglect,’ and that defendant then said, ‘Call it what you may, but my first duty was to my daughter; I was caring for her.’

Defendant's husband, Charlie Kirby, and the daughter, Alice, were both arrested without complaint or warrant and lodged in the county jail. Later, cousins of defendant's husband, residing in Hillsdale county, were likewise arrested, and lodged in the Hillsdale county jail. All were ultimately released without any charge being laid against them. The defendant, Matie Kirby, was arrested on the charge of murder, on complaint and warrant. An examination was had, and she was bound over to the circuit court and informed against on the charge of murder in the first degree.

At the close of all the testimony counsel for defendant moved for a directed verdict for several reasons, among them:

(1) There is not a scintilla of evidence in this case showing the death of this baby, except the statements or alleged statements of the defendant, and it is the universal holding of the courts of the land that no statements or confessions of defendants can be used until the corpus delicti is established by some other proof.

(2) There is absolutely no proof of any kind that if the infant is dead that it was caused by criminal agency, and that is another necessary element and must be shown outside of statements of the defendant.

(3) Even though they had shown that the infant was dead, and that it was caused by a criminal agency, there is absolutely no proof in this case to connect this defendant with that agency, and there is nothing here to go to the jury.

The trial judge seemed to be in doubt as to what he ought to do, but decided to take the verdict of the jury. He instructed the jury that under the evidence they could not convict of murder in the first degree, or murder in the second degree, but he would leave to the jury the question of manslaughter. We quote from the charge:

‘Manslaughter is the unlawful and felonious killing of another, without malice, either express or implied. To warrant a conviction of manslaughter you must find under the evidence and these instructions beyond all reasonable doubt, four things: (1) That the baby was born alive. (2) That the baby referred to in the information is dead. (3) That the baby came to its death by criminal means. (4) That this defendant was the criminal agent that caused rhe death.’

The jury returned a verdict of manslaughter. The case is here on exceptions before sentence.

It is claimed by counsel for the defendant that the extrajudicial statements of defendant should not have been received, and with them eliminated that only the first proposition submitted to the jury by the judge had been proven.

It is also claimed that with the extrajudicial statements received the proofs fall short of showing beyond a reasonable doubt the truth of either of the last two propositions submitted to the jury, and that a verdict of acquittal should have been directed.

An interesting case is that of People v. Roach, 215 N. Y. at page 600, 109 N. E. 618, Ann. Cas. 1917A, 410. The case of the People v. Simonsen, 107 Cal. at page 346, 40 Pac. at page 440, discusses the question of corpus delicti. We quote:

‘The term of ‘corpus delicti’ means exactly what it says. It involves the elements of crime. Upon a charge of homicide producing the dead body does not establish the corpus delicti. It would simply establish the corpus; and proof of the dead body alone, joined with a confession by the defendant of his guilt, would not be sufficient to convict. For there must be some evidence tending to show the commission of a homicide, before a defendant's confession would be admissible for any purpose.'

Counsel for each side cite a great many authorities, the effect of which is to show there is a conflict among them, but we think it not necessary to go outside of our own state.

In People v. Lambert, 5 Mich. 365, 72 Am. Dec. 49, it was said:

‘The only other question of importance in this case is whether a prisoner may be convicted of polygamy upon his own confession, merely, of the first marriage. It is declared by Russell and Roscoe to be a matter of doubt. 1 Russ. on Crimes, 217, 218; Roscoe, Cr. Ev. 312. Truman's Case, there referred to, was not a case of mere confession, but there was also documentary evidence. In Regina v. Simmonsto, 1 C. & K. 164, where the admission was of a marriage very much like the first marriage here alleged, that is, of a marriage in New York by a Presbyterian minister, it was doubted whether the admission was enough to prove the marriage to have been a valid one under the laws of New York. The judge allowed the case to go to the jury, advising them that the law of New York was material; and a verdict was found of not guilty. The subsequent cases decided, in effect, that a foreign law could not be proved by any such testimony. And in Regina v. Flaherty, 2 C. & K. 781, it was held expressly that there must be evidence of the first marriage beyond the mere admission of the prisoner. The English law must, we think, be considered as against allowing a conviction for this offense on mere admissions. There is a consideration hinted at in some of the cases which has much force. An admission of a valid...