State v. Burbank

• Decision Date: 26 July 1960
• Citation: 156 Me. 269,163 A.2d 639
• Parties: , 95 A.L.R.2d 166 STATE of Maine v. Fredith J. BURBANK.
• Court: Maine Supreme Court

Page 639

163 A.2d 639

156 Me. 269, 95 A.L.R.2d 166

STATE of Maine v. Fredith J. BURBANK.

Supreme Judicial Court of Maine.

July 26, 1960.

Frank E. Hancock, Atty. Gen., George M. Carlton, Jr., Bath, for the State.

Harold J. Rubin, Bath, for respondent.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN and SIDDALL, JJ., concur.

TAPLEY, Justice.

On exceptions. The respondent was indicted for the crime of murder. The case was tried before a drawn jury at the October Term, 1958 of the Superior Court, within and for the County of Sagadahoc. The State, by indictment, accused the respondent of murdering her infant female child. The jury returned a verdict of manslaughter. The respondent comes to this Court on the basis of three exceptions. The first exception was taken to the refusal of the presiding Justice to strike from the record the testimony of Dr. Goodof who performed a post-mortem examination of the child, the respondent contending that Dr. Goodof's testimony should not stand because the State had failed to prove that the body upon which the post-mortem examination was made was the body of the child alleged to have been murdered by the respondent. The second exception involves the refusal of the presiding Justice to rule upon the respondent's motion for a directed verdict of not guilty at the close of all the testimony and the subsequent denial of the respondent's motion for a directed verdict. Exception number III brings forward the question as to whether or not the evidence produced by the State shows any participation on the part of the respondent sufficient to establish her guilty of the crime of manslaughter.

The respondent saw fit not to testify or to present any evidence. The State's evidence developed the following circumstances: At approximately three o'clock in the morning of July 14, 1958 a man identifying himself as George Burbank, father of the respondent, appeared at the Bath Police Station and after some conversation he, in company with two police officers, went to the Marston Cabins at Woolwich, Maine where Mr. Burbank and his daughter, the respondent, lived. The respondent was found lying on the bed in the bedroom apparently suffering pain. One of the police officers in an attempt to alleviate her suffering applied first aid. On a bed in the kitchen of the cabin was found a living baby almost entirely covered with a bed covering. In due time the respondent was removed from the bed, placed on a stretcher and taken by ambulance to the Bath Memorial Hospital. Mr. Burbank picked up the baby and in company with a police officer drove to the hospital where he handed the baby to Mrs. Eva F. Pinkham, a registered nurse. There is other evidence in the State's case which must be treated in detail in considering those questions which have arisen as a result of the exceptions.

Exception I

Counsel for the respondent objects to the testimony of Dr. Irving Goodof who made the post-mortem examination of the child on the basis that the State failed to prove the body was that of the baby the respondent was alleged to have murdered. The evidence discloses that the child was found on a bed in the kitchen of the Marston Cabins at Woolwich and from there taken to the Bath Memorial Hospital arriving there about three o'clock in the morning on July 14, 1958. The baby was taken directly to the isolation nursery by Mrs. Pinkham, a registered nurse. The baby at this time was alive. Mrs. Pinkham in relating her physical observations of the condition of the child said 'the left side of its head was soft and spongy to the touch.' She remained with the child until Dr. Marion W. Westermeyer arrived, whereupon Mrs. Pinkham left the nursery and went about her duties. The time was approximately four o'clock in the morning. Dr. Westermeyer made an examination of the child, found the head bruised, pulpy to the touch, the forehead bruised and the bone that makes the prominence just over the left eye was cracked and there was a depression suggesting a fracture. The doctor was asked the question:

'Q. * * * Previously in your testimony Doctor, you have indicated an area of the head which indicated a mushiness, I believe, to you, or pulpiness. Will you describe with more particularity the exact area and perhaps the size of the area that was involved?'

and he answered:

'A. It was the most of the left half of the top of the head was pulpy, as you will find in what we call a hematoma or a collection of blood underneath the scalp--in the scalp.'

The doctor pronounced the baby dead fifteen minutes after examination. Mrs. Pinkham said that the last time she saw the child's body in the isolation nursery was at six or six-fifteen in the morning. The deceased child was the only occupant of the nursery.

Mr. Robert Herbert Farnham, a mortician's assistant, went to the hospital at approximately twelve-thirty o'clock on July 14th, going directly to the isolation ward of the nursery where he was directed to the x-ray room where he obtained the body of the child and took it to the undertakers. At two o'clock in the afternoon of the same day Dr. Irving I. Goodof, pathologist, appeared at the Mayo Funeral Home and forthwith performed a post-mortem on the child. He first made a general observation of the child as a result of which he testified:

'A. Well, this was a dead female infant, new born, approximately twenty inches in length. The skin was generally mottled. The umbilical cord was still attached and moist. It was well tied with green string. The head showed some degree of swelling of the left side of the head, including a portion of the forehead. The left pupil was larger than the right. These, I believe, were all of the significant external findings.'

In the course of his post-mortem examination he made an incision in the scalp and on reflecting the scalp he, 'encountered a large amount of blood located primarily over the left side of the head, but with some extension to the right side. This blood extended forward far enough so that it produced some swelling in the region of the forehead, as I mentioned before. On clearing this material away, the skull itself could then be examined and was found to show multiple fractures, most of them concentrated in the region of the left side of the head just above the ear and possibly just behind it, but also extending across to the right side.' It is to be noted that the record shows that Dr. Goodof in his opinion determined that the child was less than a day old. On July 16th George Burbank, father of the respondent, in the presence of the County Attorney, the Sheriff and investigators went to the cabin and there occurred a reenactment of Burbank's actions in the early morning hours of July 14th. He demonstrated how he took the baby from the bedroom into another room and proceeded to show how he hit the baby's head three or four times on the bedpost which obviously caused injury and damage to the head of the child. This testimony becomes significant when considering the objection of defense counsel that the State has failed to prove that the child upon whom the post-mortem examination was made was the same child alleged to have been murdered by the respondent or that if it was the same child something could have happened to her while in the hospital that caused the injuries. A reading of the testimony demonstrates by medical proof that the State has not failed in laying a foundation for the testimony of Dr. Goodof and particularly when one compares the medical findings of head injuries by Dr. Westermeyer and what was found by Dr. Goodof in his post-mortem examination of the head.

In People v. Minzer, 358 Ill. 345, 193 N.E. 370, a similar question arose as to whether or not in a prosecution for murder the body of the deceased had been sufficiently identified as to render admissible testimony of the physician who had performed the autopsy. The testimony showed that the body of the deceased was taken to the county hospital and in turn delivered to the keeper of the morgue. The keeper of the morgue tagged the body for identification and notified the medical examiner that he was to perform an autopsy. The undertaker removed the body from the morgue after the autopsy had been performed and later a sister of the deceased identified the body at the undertaking establishment. In addition to this testimony of identification, Dr. Kearns, the Medical Examiner, described an old bruise on the deceased's right leg which corresponded with that described by a Dr. Petit who had treated the deceased after a fall a few days before her death. The Court held under these circumstances that there was sufficient description of the body to lay a foundation for the testimony of the doctor.

This exception is overruled.

Exception II

The second exception consists of two parts, the first claiming error on the part of the presiding Justice in not ruling upon the respondent's motion until after a subsequent motion on the part of the State to reopen the case in order to submit further evidence was granted. The second part concerns the denial of respondent's motion for a directed verdict. This latter part of the second exception will be determined at the time we consider Exception III.

Respondent contends that the presiding Justice was without right and in error in allowing the State to reopen the case and introduce further evidence after the respondent had moved for a directed verdict at the conclusion of all the evidence and before the Court ruled on respondent's motion. This brings up the important question as to what authority a trial judge has in controlling trial procedure in a criminal case. Counsel for the respondent admits that the conduct of the trial is in the discretion of the presiding Justice and in the absence of any abuse of discretion or where there is no infringement upon the rights of a respondent, the trial judge has wide latitude in determining trial procedure. He contends that under...