State v. Collington

• Decision Date: 01 November 1972
• Docket Number: No. 19513,19513
• Citation: 259 S.C. 446,192 S.E.2d 856
• Court: South Carolina Supreme Court
• Parties: , 65 A.L.R.3d 407 The STATE, Respondent, v. Linda COLLINGTON, Appellant.

Page 856

192 S.E.2d 856

259 S.C. 446, 65 A.L.R.3d 407

The STATE, Respondent, v. Linda COLLINGTON, Appellant.

No. 19513.

Supreme Court of South Carolina.

Nov. 1, 1972.

W. Newton Pough, Orangeburg, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. J. C. Coleman, Columbia, and Sol. Julian S. Wolfe, Orangeburg, for respondent.

PER CURIAM:

The appellant, Linda Collington, was charged with murder of a new born infant, Baby Collington, on or about November 17, 1971. At the January 1972 term of court for Orangeburg County she was convicted of manslaughter and now appeals from her conviction and resulting sentence.

In November 1971, appellant was a student at South Carolina State College in Orangeburg. On Friday, November 19th, a new born dead infant was found in a trash bin on the college campus by a garbage collector. The appellant, during the course of investigation, gave law enforcement officers a written statement wherein she admitted that on November 17th, at about midday, she had a baby in her room in the dormitory, which, according to her, was born dead. She stated that she kept the baby in her room until about 10 o'clock on the following morning, November 18th, when she carried it, in a shopping bag, to the trash container where it was found the following day.

Such written statement, upon the trial, was admitted in evidence over objection of appellant's retained counsel. She now contends that admission of such statement was prejudicially erroneous for two reasons. She urges that her constitutional rights were not protected and safeguarded in full compliance with the famous Miranda decision and that, accordingly, her written statement was not freely, understandingly, and voluntarily given. The trial court held an extensive hearing out of the presence of the jury as to the circumstances surrounding the giving of the statement by appellant and, after hearing all of the evidence offered by both the State and the appellant, found as a fact 'beyond a reasonable doubt' that appellant had been accorded all procedural safeguards required by Miranda and that her statement was voluntarily given after she had been accorded such procedural safeguards. On this point we only need to say that we have reviewed the evidence and that His Honor's findings of fact are abundantly supported by the evidence.

Appellant also urges that her statement was inadmissible because the corpus delicti of the offense had not been established by evidence, aliunde such statement. In a homicide case the corpus delicti consists of two elements--death of a human being and the criminal act of another causing death. Additionally, in an infanticide case it is necessary to prove that the infant was born alive. State v. O'Neall, 79 S.C. 571, 60 S.E. 1121; Annotation 159 A.L.R. 523, et seq. Here it is urged that there was a failure to prove the corpus delicti in that the evidence was allegedly insufficient to prove the birth alive of the infant.

The corpus delicti in a homicide case must be established by the best proof obtainable, but direct and positive evidence is not essential and such may be proved by presumptive or circumstantial evidence when that is the best obtainable. See cases collected in West's South Carolina Digest, Homicide, k 228. In determining whether there was sufficient proof of the corpus delicti, we, of course, are not concerned with the weight of the evidence or the credibility of the witnesses, but rather with whether there was sufficient evidence to go to the jury tending to prove the corpus delicti beyond a reasonable doubt. State v. Epes, 209 S.C. 246, 39 S.E.2d 769.

The evidence adduced by the State tending to prove the child was born alive was as follows. The first doctor to see the body shortly after it was discovered testified that the baby's mouth was stuffed full of paper, 'either toilet tissue or Kleenex'. He did not remove or closely examine such paper. The coroner viewed the child's body at the mortuary, observed the paper in the mouth of the infant, used his finger to feel it, and testified that the 'paper was tightly stuffed in the mouth'. On or about November 30th, the body of the infant, then badly degenerated, was exhumed and an autopsy performed by a pathologist. He testified that from his examination he believed that the child was born alive and breathed naturally, and had to be alive for at least a short time, his opinion being based on his examination of the lungs. He testified that both lungs were full of air, soft and spongy as a normal lung would be when full of air; that they floated on water as if full of air, and that microscopically the air was 'uniformly throughout' the lungs. He further testified, however, to the effect that anywhere from a day on after death bacteria would commence to form gases in the lungs which would give the same impression as air therein; that what he found in the lungs could have been bacteria produced gas instead of air; that there was not any way for him to specifically differentiate between bacterial gases and natural air in the lungs, and that with the degenerative state of the child he could not say with any degree of certainty that there was any air in the lungs of the child. He was still of the view, however, that, from his observation, there was some air, as opposed to bacteria produced gas, in the lungs and that most probably the child was born alive.

In State v. O'Neall, supra, 79 S.C. 571, 60 S.E. 1121, this Court quoted with approval from 1 Wharton's Criminal Law the following passages:

'In cases of infanticide it must be shown that the child was...