Smith v. State, 3 Div. 294

• Citation: 307 So.2d 47,54 Ala.App. 237
• Decision Date: 17 January 1975
• Docket Number: 3 Div. 294
• Parties: Charles Edward SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 47

307 So.2d 47

54 Ala.App. 237

Charles Edward SMITH v. STATE.

3 Div. 294.

Court of Criminal Appeals of Alabama.

Jan. 17, 1975.

Jasper B. Roberts, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

ALMON, Judge.

Appellant ws indicted for the first degree murder of his ten week old son, Charles Edward Smith, Jr. To that indictment he plead not guilty and not guilty by reason of insanity. A jury found appellant guilty of second degree murder and fixed his punishment at forty-five years in the State penitentiary.

According to Mrs. Virginia Ann Smith, appellant's wife and mother of the deceased, she departed their home at approximately 2:30 P.M. leaving appellant and Charles, Jr., at the house alone. Except for some bruises on his knees caused by appellant's spanking of the child on at least two occasions during the previous week, the child was otherwise in normal condition. When she returned from work a little before midnight, the child was having difficulty breating. Upon closer examination, his eyes were dilated, his mouth was drawn to the right side, and his body was completely limp. Mrs. Smith took the child to the emergency room of Baptist Hospital where he was examined by Dr. Hugh Frazier who testified that the child was semicomatose with dilated pupils and fresh hemorrhaging in the back of the eye, and generally in 'very bad shape.' Although no fluid was removed by subdural taps performed on both sides of the child's head, both Dr. Frazier and another examining physician concluded that the child had sustained an injury to the head. Dr. Frazier was also allowed to testify that the injury in his opinion did not naturally occur in the sense that it could not have been self-inflicted by a child too young to walk or crawl. The child suffered a respiratory arrest three and one-half hours after the initial examination and a cardiac arrest twenty-four hours after that examination. His condition continued to deteriorate and death occurred sixteen days later. According to the State Toxicologist who performed the postmorten examination, 'the child's death was the result of brain damage and hemorrhage associated with a blow to the head.'

Defense counsel introduced a certified copy of the death certificate signed by the Coroner of Montgomery County. Although the cause of death thereon was listed as 'severe generalized brain damage secondary to external blunt trauma,' the form entry for 'interval between onset and death' was given as 'approx. 4 days.' This discrepancy was not reconciled due to the fact that the coroner was deceased at the time of the trial. Defense counsel also introduced the report of another physician, Dr. George R. Cocks, who examined the child four days after he had been admitted to Baptist Hospital. In that report the physician stated that he could 'see no evidence of trauma to the head.' Finally, there was introduced the report of Dr. John G. Kimbrough who x-rayed the child's body upon admission to the hospital. Those x-rays revealed no fractures of the child's skull.

The first six of appellant's eight contentions of error address themselves to whether the prosecution's evidence made out a prima facie case for second degree murder.

Appellant cites Hardison v. State, 30 Ala.App. 40, 200 So. 635, for the proposition that there was insufficient evidence to establish that the deceased died as a result of an injury inflicted by him. In Hardison the defendant had been indicted for the killing of his wife by striking her with a blunt instrument. The murder conviction, however, was reversed because the trial judge refused to accept into evidence testimony that the deceased had sustained another blow to the head at a point in time earlier than that fixed by expert medical testimony as the approximate time of the fatal blow. Guilty agency, being a part of the corpus delicti of the crime, must be established by substantial evidence; it may, however, be established by circumstantial evidence. Vernon v. State, 239 Ala. 593, 196 So. 96. The rule applies with equal force in prosecutions for criminal homicide. Spain v. State, 37 Ala.App. 311, 68 So.2d 53. There was substantial evidence establishing criminal agency (i.e., that the child's death was caused by other than natural or accidental injury). First, there was the death of a ten week old child who, prior to Mrs. Smith's departure for work on the day in question, was shown to be healthy and normal in every respect. Secondly, there was the testimony of the attending physician at the emergency room where the child was taken by his mother; specifically, that the child was in a semicomatose state, he had suffered a injury to the head not likely to have been self-inflicted, he was in very bad shape, and he had a respiratory arrest and a cardiac arrest during his first day in the hospital. Without reference to any admissions or declarations made by the appellant, Duck v. State, 38 Ala.App. 652, 92 So.2d 55, we hold that the prosecution met its burden of proof in showing that the victim died because he was killed as opposed to dying from natural or accidental causes. Welch v. State, 45 Ala.App. 657, 325 So.2d 906. As this Court held in Price v. State, 52 Ala.App. 21, 288 So.2d 803:

'If a reasonable inference of the existence of the corpus delicti can be inferred from the evidence, the court should submit to a jury, for its consideration, the weight and sufficiency of the evidence tending to support such inference.' (Citation omitted). 288 So.2d at 806.

Appellant argues in the alternative that even if there was sufficient evidence of the corpus delicti, there was nonetheless a failure on the part of the prosecution to establish his criminal agency. See Pearce v. State, 14 Ala.App. 120, 72 So. 213. We disagree. The appellant's wife testified that he and the baby were alone when she departed for work and were still alone upon her return some nine hours later. It was also her testimony that when she returned from the hospital, appellant, who had remained at home, was in a hysterical state and expressed surprise that police officers were not accompanying her. According to the testimony of the investigating officer from the Youth Aid Department of the Montgomery Police Department, Orvie Locklar, who visited the Smith home the following morning, appellant again stated that he had expected the police to come the night before. After proper Miranda and pre-Miranda predicates were laid, Locklar testified that he had the following conversation with the appellant:

'Q. Now, I will ask you, did he make a statement to you? Refer to your case file, your notes. Did he make a statement to you?

'A. Yes, sir, he did. I asked him, I said, 'Mr. Smith, did you have a reason for hurting your baby?' And he says, 'Do you believe in the Bible?' I said, 'Yes I do.' He said, 'Do you believe in demons?' I said, 'Yes I do.' And I quote. He says, 'That baby has a demon inside. I have a demon within me, and my seed has inherited it. And it must be destroyed.'

'Q. And that is what he told you?

'A. Yes, sir.

'Q. Did he tell you anything about whether or not he had expected you? What else did he tell you?

'A. Yes, sir. He said that he was dressed the night before, waiting for us to come. And that he had been expecting us and he would cooperate in any way...