State v. Osmus

• Decision Date: 16 November 1954
• Docket Number: No. 2590,2590
• Citation: 73 Wyo. 183,276 P.2d 469
• Parties: The STATE of Wyoming, Plaintiff and Respondent, v. Darlene OSMUS, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 469

276 P.2d 469

73 Wyo. 183

The STATE of Wyoming, Plaintiff and Respondent, v. Darlene OSMUS, Defendant and Appellant.

No. 2590.

Supreme Court of Wyoming.

Nov. 16, 1954.

Brooke Wunnicke, Cheyenne, for appellant.

Howard B. Black, Atty. Gen., Paul T. Liamos, Jr., Deputy Atty. Gen., Robert A. McKay, Asst. Atty. Gen., Raymond B. Whitaker and Robert J. Murphy, County & Pros. Attys., Natrona County, Casper, for respondent.

BLUME, Chief Justice.

In this case the defendant was accused of murder in the first degree for killing her newborn child. She was convicted by a jury of manslaughter. The jury added to the verdict a recommendation of a minimum sentence. The court sentenced her to prison for the minimum period of two years and the maximum period of four years. From that conviction and sentence the defendant has appealed. We should mention, before proceeding further, that her counsel on this appeal was not her counsel in the trial of this case. The facts as disclosed by the record are about as follows:

Defendant, an unmarried woman, not yet 21 years of age on March 5, 1952, was raised under a religious atmosphere in Colorado, graduated from high school and then took a course in nursing for some two years, but was dismissed from the school as a person not properly fitted to become a nurse and she never became a graduate nurse. She gained some medical knowledge but knew nothing of obstetrics. She went to Casper in this state in January 1952 to help take care of her sister-in-law, who had recently given birth to a child. She worked up to March 5, 1952, as well as immediately after that date up to March 14, 1952, when she was arrested. She showed no signs of pregnancy whatever as testified to by witnesses for the state as well as defendant. She lived with her brother and sister-in-law in a three-room apartment, consisting of a living room, which was also used as a bedroom, a kitchen and a bath, the latter being separated from the living room by a kitchen. Defendant slept on a cot in the bathroom. There was a toilet in this room, apparently on a platform somewhat higher than the floor, and with two or three steps down to the floor. About midnight of March 5, 1952, defendant gave birth to a fully developed male infant, weighing 7 1/2 pounds, which she claimed was born dead. She kept it under the cot for about three days, wrapped it in a newspaper, and thereafter took it along the highway out of Casper and laid it close to the highway where a game warden, who had observed her and was suspicious of the circumstances, found it. The brother and the sister-in-law of defendant both testified that they heard no outcry or any commotion of any kind in connection with the birth of the infant and knew nothing of it until the defendant was arrested.

The gist of the defendant's testimony is as follows: She did not know that she was pregnant and did not have the usual indications in that connection and had had regular menstrual periods. On March 5, 1952, she had no unusual symptoms of any kind until she went to bed about eleven o'clock. At first she thought that she was having menstrual cramps and then felt that she had to go to the bathroom. She walked up to the toilet, sat down, had a 'large' cramp, and then fell against the rail in front of her. She became unconscious for a few seconds or minutes, but when she regained consciousness, she picked up the baby which was still attached to the placenta. She took some tissue and wiped its mouth and nose to see if it would breathe and held the baby upright, but the baby was dead. She was weak and frightened when the birth happened but did not cry out. After she wiped the baby's face and nose, and it was not breathing she took a scissors from a ledge back of the toilet and cut the umbilical cord close to her body. She remained seated while holding the baby, then everything started to get black; she walked down the steps with the baby and she 'passed out' from dizziness and she did not regain consciousness until about 5:30 in the morning. She did not have much hemorrhage and did not pass the placenta until the next day. The baby was on the floor; she picked it up and laid it on the cot. It was still blue. She then wiped up the blood on the floor beside the toilet. She thought of then telling her brother or the police, but concluded not to do so, wrapped up the baby in a newspaper and disposed of the body as already mentioned. She did not harm the baby in any way but did all she could to save its life. She helped to prepare breakfast on the morning of March 6th, stayed at home that day. On March 7th she went to a show with some girl friends and on March 8th, she washed and cleaned house. On March 10th she went to the Shell Oil Company, took a physical examination and passed. She further testified that she bled some, but not much, on the sheet because she had no Kotex on. The significance of that has not been shown. We might incidentally mention the fact that it is stated in Taylor's Medical Jurisprudence, page 427, that cases do occur in which a woman who is pregnant has no knowledge of her pregnancy. Dr. Stuckenhoff, however, testified that defendant told him that she felt labor pains in the afternoon of March 5th, and Dr. Hansard testified that defendant told him that she had not menstruated since June 1951.

Medical Testimony

Dr. Thaler testified at the Coroner's Inquest. He was not present at the trial, being absent in Chicago, but his testimony at the inquest was admitted at the trial. He made the post-mortem examination along with Dr. Stuckenhoff. There was blood in the pleural cavity. He did not conclude, definitely, that the child was born alive. There were no marks of violence on the body. There was some mucus all over the body of the child, the face of the infant having less of it than the other parts of the body. The infant was a full term infant. The lungs were aerated and floated in water. There was a showing of gas in the stomach. The gas in the stomach could have existed if the child was not born alive, but that is not true as to the air in the lungs. There must have been an infection in the lungs, suggesting pneumonia but there was no evidence of trauma. There were fragments of Kleenex tissue on the lips and tongue. Some 13 or 14 inches of the umbilical cord was still attached and was dry.

The testimony of Dr. Stuckenhoff, a witness for the state, was substantially as follows: The infant was a full term infant, weighing 7 1/2 pounds. The cord was still attached to the child, and was dry, and there was no evidence that it was tied. The skin was normal in appearance, slightly dried, still very flexible and of good consistency. The nails, hair and other parts were fully developed. There was a distinct bluish discoloration from the central portion of the neck upward, involving the entire head, which, of course, could have happened before death, or the changes could have happened after death. There were some bluish spots in various parts of the body which, of course, is the thing that you usually see in post-mortem examinations. The lips were dried and crusted; the cornea of the eye was dull and opaque; there were no broken bones. There was no evidence of any violence or any trauma or of any scratches. He did not find that the defendant used any medicine to do away with the baby. The lungs seemed to contain some air and floated in water, often a criterion whether the child lived after birth or not. There was some bloody fluid in the lungs as well as in the chest cavity between the pleura and the chest wall. There was gross red discoloration of both lungs with bloody extravasations suggesting congestion. The abdomen was partially extended. Upon opening the skull, there was a moderate amount of bloody exudate, and not clotted, suggesting congestion. In order to expand the lungs, the infant must have made an effort toward respiration. The lungs were not completely filled. The infant was born with pneumonia. In his opinion, the infant was born alive and the cause of death was a combination of asphyxia and pneumonia. With modern medical care, physicians seldom lose a child born with pneumonia. The infant had a heartbeat; it would not breathe without it.

'Q. What do you believe caused this asphyxiation? A. It is pretty hard to say.

'Q. There is no way of knowing is there? A. No.

'Q. From a medical point of view? A. No. Asphyxiation can be caused in a number of ways; by mucus, by something over the nose and mouth so that it can't breathe--there are a number of ways. Drowning is actually asphyxiation, you know.

'Q. Pneumonia, itself, could cause asphyxiation, could it not? A. I don't think it was extensive enough in this instance to cause asphyxiation.'

There was some Kleenex attached to the tongue; there were only fine shreds, not sufficient to interfere with breathing. He did not know whether the baby breathed or had circulation of the blood after the severance of the umbilical cord, because he did not know when that was severed. He felt in his own mind that the baby breathed and that it swallowed because of certain findings. The cord does not necessarily have to be detached; it could be an hour or two before detaching the cord. The heartbeat in the cord soon disappears after birth and then, of course, there is no connection (with the mother). Physicians usually wait in tying the cord until the heartbeat in the cord has ceased. Then there is no continuity. Nature seals off the cord after it is cut. When the heartbeat disappears in the cord, physicians normally feel that there is no further circulation between the placenta and the baby. It was difficult for him to believe that defendant passed out while on the toilet without falling to the floor, or that--with the rooms as they were--nobody knew of the delivery of the child. Not every baby cries when born. And not every one that drowns has water in the lungs. The greatest danger point in the life of an...