State v. Bodi

• Decision Date: 10 August 1960
• Citation: 223 Or. 486,354 P.2d 831
• Parties: STATE of Oregon, Respondent, v. Wayne BODI, Appellant.
• Court: Oregon Supreme Court

Page 831

354 P.2d 831

223 Or. 486

STATE of Oregon, Respondent, v. Wayne BODI, Appellant.

Supreme Court of Oregon.

Argued and Submitted July 20, 1960.

Decided Aug. 10, 1960.

Arthur V. Biggs, Corvallis, argued the cause for appellant. On the brief were Biggs & Allan, Corvallis.

John B. Fenner, Dist. Atty., Corvallis, argued the cause for respondent. With him on the brief was J. Alfred Joiner, Deputy Dist. Atty., Corvallis.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, O'CONNELL, GOODWIN and MILLARD, Justices.

GOODWIN, Justice.

Wayne Bodi appeals from a conviction of the crime of manslaughter.

The indictment accused him of involuntarily killing a 4 1/2-month-old baby girl by willfully beating the child with his hands about the face and head, with sufficient force to cause bilateral subdural bleeding, described in the indictment as 'hematomas'.

Bodi, a 20-year-old unmarried male, was living with Clara Smith, a 31-year-old female, who was married to a third person. Both Bodi and Mrs. Smith testified that Bodi was the father of the deceased child. For the purposes of this appeal it is not necessary to question their testimony in this regard. The three had lived in a trailer in Glenbrook, Benton County, for about one week prior to the events which led to the trial and conviction under review.

There was testimony to the effect that the deceased child was in good health at all times until about 10:00 a. m. on the day of its death, Sunday, June 21, 1959. There was also evidence that the child had suffered several falls in the recent past, including a fall out of a stroller some 10 days before, a fall from the front seat of a 1948 Plymouth automobile to the floor thereof one or two days earlier, and at least one fall forward from a bed in a trailer house against a window sill as recently as the fatal morning. There was also general testimony concerning other bumps and bruises which may have been occasioned by permitting the child to fall forward from a stroller on the last night of its life. There was further testimony that the child had received bumps from being pushed about in a stroller at the uncontrolled discretion of a 6-year-old neighbor girl. The mother said she had noticed no change in the child's general health following any of said bumps or falls, but she testified that she had seen some bruises on the child's face. A neighbor also testified that she had observed bruises on the child's face during the week preceding the fatal Sunday.

About 10:00 a. m. on the Sunday in question, Mrs. Smith went to a neighbor's house to do some laundry. She swore that the child was perfectly normal when she left. Shortly before 12:00 noon, she testified, Bodi summoned her to the trailer, saying 'there was something wrong with the baby.' She returned, and from what she observed, she said she thought the baby was choking.

Mrs. Smith testified that she tried to induce the child to spit up, without success. She then tried mouth-to-mouth artificial respiration. Almost immediately it was decided to take the baby to a doctor and about noon the three arrived at the office of a Junction City physician who pronounced the child dead and advised Bodi and Mrs. Smith to take the body to the Benton County Coroner. This was done. The coroner caused an investigation to be made, and, two days later, an autopsy was performed.

Mrs. Smith swore that she did not know what caused the child to become stricken, and no other witness except the defendant saw the child between 10:00 a. m. and the emergency return of the mother a few minutes before the child expired. The defendant, except for what he wrote in his confession, denied striking the child.

Circumstantial evidence tended to prove that the child died of brain damage as the result of tearing of tentorial membranes and bilateral subdural bleeding. The dura is the membrane which surrounds the brain; the tentorium is a part of the dura. The appeal challenges an alleged discrepancy in medical nomenclature between the word 'hematomas', as used in the indictment, and the word 'hemorrhage', which was used more or less interchangeably with 'hematoma' by doctors and attorneys, including defense counsel, in the taking of testimony.

Several expert witnesses testified that the significant medical findings were torn tentorial membranes and massive subdural hemorrhage, which they described as fresh, unclotted bleeding between the dura and the brain. There were also colored slides which showed massive hemorrhages on two sides of the brain.

Passing the question of nomenclature for the moment, the evidence tended to show that the bleeding could only have been induced by a violent trauma. The evidence further tended to show that the trauma was of the blunt or distributed variety rather than sharp or focused, as there was no breaking of the skin or bone damage to the cranium. The medical findings indicated that a blunt force or forces had been applied to the head within 48 hours of death.

There are eight assignments of error, which will be considered in the order in which they fit into the trial below.

Bodi gave a signed statement to the district attorney. In his statement he admitted having slapped the child 'I don't know how many times,' in fits of rage provoked by the child's crying. He stated that the slapping took place both on Saturday night and on Sunday morning. Bodi was not under arrest when he gave the statement, but he had been asked to come to the District Attorney's office to answer questions. After he gave the statement, he said, 'May I go now?' He was then advised that he was under arrest.

Bodi assigns error to the ruling of the court which permitted the jury to pass upon the voluntariness of the confession, claiming the court should have excluded the confession as a matter of law.

We have examined the confession together with all of the testimony relating to the manner by which it was obtained. The evidence was in sharp conflict whether or not the police officers said to Bodi, as he claimed, '[put] that down on paper and put your signature on it * * * and there will be no trouble, and we will forget about it,' or words to that effect.

If the defendant's story about the taking of his confession had been undenied, then, under the rule laid down in State v. Wintzingerode, 1881, 9 Or. 153, and adhered to since, the confession would have been defective and it would have been error to permit the jury to consider it. However, the defendant's version of the taking of the confession was disputed by the officers. They swore that his statement was entirely voluntary and that no threats or promises had been made. It was within the trial court's discretion whether to submit the signed statement to the jury along with the evidence concerning the giving of the statement. It was for the jury to decide whether the confession was voluntary and trustworthy. State v. Nunn, 212 Or. 546, 554, 321 P.2d 356, and cases collected therein. No error was committed in receiving the confession.

The second principal question on this appeal is whether the state introduced enough evidence of the corpus delicti to take the case to the jury without the confession.

ORS 136.540(1) provides in part, 'nor is a confession only sufficient to warrant his conviction without some other proof that the crime has been committed.'

The quoted provision of the code does not require the state to prove its case beyond a reasonable doubt independently of the confession. State v. Wilkins, 72 Or. 77, 142 P. 589. The statute means only what it says. In this case, it required the state to prove by evidence, other than the confession, that the child met its death by criminal means. If the evidence, apart from the confession, was equally consistent with the defendant's theory that the child met its death by accidental means, then the confession could not aid the state's case. ORS 136.540(1), supra.

The evidence was sufficient without the confession to present a question for the jury whether a criminal act was the cause of death. The jury could have found (1) the child was in good condition two hours before its death; (2) severe hemorrhage resulting from torn membrane within the cranium caused death; (3) intracranial damage was inflicted within 48 hours of the time of death; (4) the child could not, after having sustained the injuries, continue to appear normal even to lay persons; (5) injuries of the kind found could not have been either: (a) self-inflicted, or (b) the result of the ordinary bumps and bruises caused by falling out of a stroller, from a bed, or from a car seat onto a floor.

The autopsy findings contained ample evidence to make out the corpus delicti when tied to other testimony in the case which tended to prove that the child had slept normally the night before its death, and that the child was considered by the...