Smith v. State, 26947
| Decision Date | 28 April 1954 |
| Docket Number | No. 26947,26947 |
| Citation | 268 S.W.2d 144,160 Tex.Crim. 227 |
| Parties | SMITH v. STATE. |
| Court | Texas Court of Criminal Appeals |
William R. Herring, Dallas, for appellant.
Henry Wade, Dist. Atty., Fred Bruner, First Asst. Dist. Atty., Dallas, Wesley Dice, State's Atty., Austin, for the State.
Appellant was convicted of an assault with intent to murder with malice upon his stepdaughter, a baby about 9 or 10 months old, by the name of Glenda Kaye Westmoreland. He was by the jury awarded a penalty of 10 years in the state penitentiary and he appeals therefrom.
The testimony shows that on the 8th day of August, 1953, this baby, its mother and stepfather, the appellant, were living in a sort of trailer house in the city of Dallas; that this baby was injured at the time in question and was having a great deal of difficulty with its respiration. A metal airway had been inserted into its mouth and throat so that it could get some relief in its breathing. There were numerous bruises evidenced on this child when she was soon brought to the Parkland Hospital in Dallas. There were bruises about its head and face, and some on its shoulders and trunk, one on the back and some about its chest. It had a large soft swelling over the forehead and on both sides of the skull, and predominantly on the left side. There was a collection of blood beneath the scalp. The left eye was swollen to where it could not be opened. The right eye was also swollen, but not so markedly. There was a fresh abrasion of the skin beneath the right eye, and there was a fresh cut just beneath the nose and upper lip, and this cut extended into the mouth, from the outside clear in through the lip, to the inside of the mouth. There were three separate lesions on this child: one on the left thigh, one on the left side of the abdomen, and one in the palm of the left hand. The child was still blue about the lips, nails and fingers, and after the airway had been in place for a short time the color improved.
Dr. A. D. Sears, a radiologist, testified that he took some X-ray pictures of this child, especially its skull and right leg. In the skull, there were three separate fractures involving the right side and the base of the skull. One skull fracture began at the midline and extended downward; the second skull fracture was what is called an 'eggshell fracture, just like a cracked egg, and gives a little radiating starlike fracture, and then radiating out therefrom.' Then there were three fractures: one on top of the skull, one in the base, and one in the back. 'There was a fracture involving the upper portion of the tibial bone, which is the large bone of the foreleg, of the right leg near the knee joint.' In the opinion of the doctor, these fractures could not have been caused by falling out of an automobile, but were caused by a trauma, that is, a physical injury.
The State showed by a neighbor to the appellant that she heard a beating going on and the baby was crying and screaming about the time of this injury; that she went to this trailer and the mother of the child handed it to the witness. The baby was bloody all over. Its face, nose and mouth were bloody. Its mother kept on saying that it was dead. Appellant soon came out of the trailer, took the baby and carried it away to the hospital. The witness never saw anyone strike the baby, but she went into the appellant's trailer and saw blood on the sink therein and on the wall.
Another neighbor made the statement that when she heard the baby crying at the time of the trouble, she also heard the mother, wife of the appellant, say, 'Don't, don't, don't.' Soon thereafter the door flew open and appellant's wife reached over and laid the baby in the other neighbor's arms. The baby's head and face were bloody, and it was 'bobbling its head.'
The State then rested its case and appellant introduced his wife, the mother of the child, who told about a trip some six days before to the town of Grandview; that they ran out of gasoline when some distance from this town, and she and a lady companion, who was with them, left to go after some gasoline, leaving the appellant and the baby in the car. When they returned to the car with the gasoline appellant was washing the baby with a diaper. Its face was all swollen and its nose and mouth were bleeding. Appellant stated that he had gone to sleep while his wife and her companion had gone after the gasoline, and that the baby had crawled out of the car and broken its nose as it fell to the ground. They took the baby to a doctor in Grandview who treated it for a broken nose and put an icepack on her and they kept it on there as long as they could. The child seemed to be getting along all right after this incident until the occasion here in question.
After this child and its mother were taken to the hospital, appellant arrived there, and in a few minutes they were both taken to the city hall, where appellant's picture was taken, and eventually he made a statement to the officers relative to this occurrence as follows:
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