No. 12075 

IN THE SUPREME CBmT OF THE STATE OF MONTANA 

1972 

THE STATE OF MQWANA, 

Plaintiff and Respondent, 

-VS - 

JERALENE HENRICH, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant : 

J~hn L. Adams, Jr. argued, BiTlings, Montana. 

For Respondent: 

Hsn, Robert L, Woodahl, Attorney General, Helena, 

Montana. 

David V, Gliko, Assistant Attorney General, argued, 

Helena, Montana. 

Harold F, Hanser, County Attorney, Billings, Montana. 

Clifford Schleusner, Deputy County Attorney, argued, 

Billings, Montana, 

Submitted: April 20, 1972 

Decided: JUN - 8 @ 

-s ~~ 

Filed : 
Mr. Justice John C. Harrison delivered the Opinion of the Court. 

This is an appeal by the defendant, Jeralene Kye Henrich, from 

a judgment of conviction of involuntary manslaughter under the provisions 

of section 94-2507, R.C.M. 1947. The defendant was tried by a jury in 

the district court of the thirteenth judicial district, Yellowstone 

County, found guilty, and sentenced to serve two years in the Montana 

State Prison with one year suspended. From this judgment defendant appeals. 

On January 11, 1971, the Billings, Montana fire department received a call requesting it to proceed to the home of the defendant. Upon 

arrival, Captain Benton Pattee found two year old Carl William Henrich, Jr. 

on the living room couch wrapped in a blanket. Defendant, the stepmother 

of the child, indicated to Captain Pattee that the child was having difficulty breathing. A resuscitator was applied to the boy which produced a 

mild response in the form of movement of the arms and hands. 

Shortly thereafter, an ambulance arrived and took the boy to the 

family physician, Dr. Paul Crell in. Enroute, the ambulance's resuscitator 

was applied but without any further response. 

Upon arrival at the doctor's office, Dr. Crell in administered 

mouth-to-mouth resuscitation without success. The boy never regained 

consciousness and was pronounced dead-on-arrival at St. Vincents Hospital. 

Dr. Gordon Cox, a 1 icensed physician and path01 ogist , performed 

an autopsy the following day. His findings and testimony revealed that the 

deceased had a rupture of the 1 iver, "an actual transection of the 1 iver" 

resulting in the liver being split into two parts; and a "large prominent 

fracture of the basal portion of the skull involving the right occipital 

bone". 

Dr. Cox further testified: 

" * * * the basal part of the skull is formed by one 

of the hardest bones in the body. It is very thick 

and well protected, as I mentioned, by soft tissue, 

and requires an extensive force to deliver an amount 

of force to this area which will fracture this bone." 
The skul 1 fracture was of sufficient severity to have caused death, but 

it was the doctor's opinion that death, in this case, resulted from 

massive hemorrhaging of the transected liver. The boy bled to death. 

Regarding the liver injury, the doctor testified the force required 

to transect the liver "in this fashion" had to be a severe force and that a 

"direct force was required" here because the spleen, which is more susceptible to injury, was not ruptured. 

On cross-examination, Dr. Cox indicated that his autopsy had not 

revealed any evidence of epilepsy in the boy, but his findings should not 

be regarded as conclusive in that respect. It was also the doctor's opinion that the skull fracture was not self-inflicted, such as a fall, because 

the child was not heavy enough to generate the force required to fracture 

the skul 1 bone. 

After the boy was pronounced dead, defendant made a statement to 

the Billings police and also testified at trial as to the events that took 

place on the morning of this unfortunate and tragic incident. It is defendant's uncontradicted, but also uncorroborated testimony that on the morning 

of January 11, 1971, she arose at 6:00 a.m. "to get my husband off to work". 

Since none of her three boys were awake when her husband left, defendant 

went back to bed. Around 9:20 a.m. she was awakened by her four year old 

son, Larry, who had been attempting to dress young Carl, the deceased. Defendant got up and discovered that Carl had "already messed his pants" so 

she took him into the bathroom where she partially cleaned him off and also 

spanked him with a twelve inch long stick. After spanking Carl, defendant 

"grabbed him by the arm and swung him around against the tub" and laid him 

over the side to facilitate cleaning of his bottom. Defendant then placed 

Carl on the toilet seat and left the bathroom. She testified thereafter: 

"I waited approximately 5 or 10 minutes and then I 

went back to check on him. I found Todd (Carl 's 

nickname) sitting completely down on the stool but 

his arms were still holding him. I said, 'Todd sit 

up' but he wouldn't so I repeated it. Then I sat 

him up when he did not sit up alone. Then he fell 

back down in the stool. I sat him up again. He 
fell into the stool again and I picked him up and put 

his hands on the stool and I let go and he fell 

completely off on the floor. I picked him up and 

stood him up and he fell again on the floor. Then I 

picked him up again and he fell again. I picked him 

up again, thinking he just lost his balance. I 

noticed then, that he wasn't doing it on purpose so 

I kept trying to stand him on his feet. - His arms 

and legs were limp and he was real pale and his eyes 

rolled. I knew something was wrong so I started 

hitting him hard on the back first and then on his 

chest. I was doing this because I thought he had a 

temper tantrum and was holding his breath, he had a 

habit of holding it and I have spanked him for it. 

The last time he did this was 2 weeks ago. I took 

him out of the bathroom to the living room and laid 

him on the floor. I shook him and everything trying 

to bring him out of it. By everything, I mean I 

tried hitting quite hard trying to bring him out of 

it. When this did not help, I went outside and got 

some snow and put it on his face. He did not respond. He just tried to cry and gasped. I think 

he was trying to catch his breath, then I started 

shaking him and slapping his face again. Then I 

realized something was really wrong because I 

couldn't bring him out of it. I looked at him and 

his 1 ips were turning blue and he was real white. 

Then I ran upstairs * * *." 

She then ran to a neighbor's apartment and called the fire department. 

Apparently, the episode in the bathroom had a twofold purpose: 

first, it was another session in defendant's frustrating attempt to pottytrain Carl; and, second, it was punishment for "messing his pants." On 

cross-examination, defendant testified to the technique she had used when 

spanking Carl in the bathroom. 

"I held both his ankles with one hand and just lifted 

him up, his head and back were still laying on the 

f 1 oor . " 

Dr. Cox testified in reference to the skull fracture: 

" * * * the only conceivable way to do it is by 

using the child's weight as an advantage, in putting it in motion, and striking a hard object, and this 

is mostly done by swinging the child--". 

Defendant produced several witnesses who all testified they had 

actual knowledge of the way defendant treated Carl and, in their opinion, 

defendant loved Carl and Carl loved the defendant. They had never witnessed 

any physical abuse of Carl by the defendant. These witnesses did say that 

during the times they had observed Carl, that occasionally he would go into 
a type of trance or seizure; stiffen up and fall forward; moments later 

he would act normal again. 

At the end of the trial but before settlement of instructions, 

several written questions were submitted by members of the jury to the 

court. Two of the questions were as follows: 

1. The mother having three children to take care of should have 

been up and taking care of their needs earlier than 9:30. Why wasn't she 

up? 

2. Why was the child not given medical treatment through welfare 

or free medical clinic if they felt the child was handicapped? 

After the settlement of instructions and while the jury was del iberating, the jury submitted another question to the court: If we consider 

this an accident as per instruction number 27, is it then involuntary manslaughter? 

In passing, we note that instruction No. 27 had been defendant's 

offered instruction No. 10. Therefore,no objection can be made by defendant 

to a question on her instructions. 

On appeal, defendant has raised four issues for our review and 

consideration: 

1 . Whether evidence of defendant 's striking and beating Carl was 

properly admitted under the pleadings. 

2. Whether Carl's death was an accident within the purview of 

section 94-2511, R.C.M. 1947, thereby entitling defendant to an acquittal. 

3. Whether the evidence was sufficient to support the verdict. 

4. Whether the jury questions submitted to the court demonstrated 

that the jury was biased and guided by passion and prejudice in arriving 

at their verdict. 

Proceeding to defendant's first issue, we find that she was charged 

by information with "wrongfully, unlawfully, and feloniously" kill ing Carl 

Henrich. It is defendant's contention that such a pleading is a specific 

pleading of involuntary manslaughter and, as such, precludes the admission 
of any evidence which would tend to prove a charge of voluntary manslaughter. 

Specifical ly , defendant objects to the admission of testimony which a1 1 eges 

that she struck and beat her child. She contends that this evidence is 

evidence of intent and therefore evidence of a crime different from that 

with which she was charged. 

There is no merit in this objection. All the evidence relating 

to defendant's "striking and beating" Carl was offered by her testimony 

and through her statement made to the Billings police on the day of the crime. 

The only evidence offered by the State in this regard was an opinion of Dr. 

Cox as to how the skull fracture and liver injury might have been inflicted. 

He testified on cross-examination there was no question as to what caused 

the injuries. It was not his educated guess, but his scientific opinion, 

that the death occurred from the beating given. 

Defendant's second issue alleges that Carl 's death was the result 

of an accident and, as such, is excusable homicide within the meaning of 

section 94-2511 (I), R.C.M. 1947. That particular section provides that: 

"Homicide is excusable in the following cases: 

"1 . When committed by accident or misfortune, 

in lawfully correcting a child or servant, or 

in doing any other lawful act by lawful means, 

with usual and ordinary caution, and without 

unlawful intent." 

Under this section, homicide is excusable if it is committed by 

accident while disciplining a child. However, such discipline must be 

executed with "usual and ordinary caution." Here, the evidence was sufficient to warrant the jury finding that such "usual and ordinary caution" 

was not exercised. Dr. Cox testified that in order to fracture the basal 

part of the sku1 1, that "an extensive force" would be required because 

that bone is one of the hardest bones in the body in addition to being 

we1 1 protected by soft tissue. The doctor further testified that the trauma 

to the liver "had to be of severe force". The nature of the skull fracture 

and the liver injury would seem to rule out the possibility that "usual and 

ordinary caution" had been exercised. 
In addition to the nature of the injuries here, we also have 

the testimony of the defendant which recites that she "swung" the child 

over the bathtub; that she hit him several times "quite hard"; and 

that she lifted him by his legs while in close proximity to the bathtub. 

Considering the evidence and the testimony admitted at trial , the question 

of whether or not the defendant exercised "usual and ordinary caution" 

within the meaning of section 94-2511 (I), R.C.M. 1947, was one to be resolved solely by the jury. State v. Kuum, 55 Mont. 436, 178 P.2d 288. 

Defendant also contends that the evidence was insufficient to 

support the verdict; that the criminal negligence of the defendant was 

never establ ished. With this we cannot agree. 

This Court has long held that the criminal agency of a defendant may be established by circumstantial evidence. State v. Kindle, 71 

Mont. 58, 227 P. 65; State v. Cor, 144 Mont. 323, 396 P.2d 86. 

Reviewing the evidence, we find that (1 ) Carl was in good health 

on the morning of January 11, 1971, (2) the defendant was the only adult in 

Carl 's presence, (3) defendant admitted being angry with Carl for "messing 

his pants", (4) defendant grabbed Carl "by the arm and swung him around 

against the tub", (5) defendant hit Carl with a stick and her fists several 

times "quite hard", (6) Carl died shortly thereafter of injuries that required a "severe force" to inflict, and (7) it was extremely unlikely that 

those injuries could have been self-inflicted. 

On the other hand, there is no reasonable evidence which would 

suggest that Carl died of injuries inflicted in some other fashion. There 

was an attempt by lay witnesses and the defendant to establish that Carl 

was subject to occasional momentary seizures where he would stiffen up and 

go into a trance. Apparently, this testimony was designed to suggest Carl 

was an epileptic or, at the very least, suffered from some unknown malady. 

However, there was no expert testimony in this regard. 

It was also speculated that Carl could have fractured his skull 

on the toilet bowl rim when he slipped off the seat and while the defendant 
was out of his presence. Even if this is a reasonable hypothesis, Dr. 

Cox testified that Carl , who weighed between 25 and 30 1 bs., could not 

have fallen down and fractured his skull. " * * * the amount of force required to infl ict this injury is much greater than 30 pounds." 

It was also speculated that the liver injury could have resulted 

from Carl falling off of a chest of drawers and landing on the handlebars 

of a tricycle. Dr. Cox also discounted this possibility as the height of 

the fall would not have been great enough to generate the force required 

to transect the liver. In addition, there was no evidence that Carl had 

fallen in that manner either just prior to his death or any time before. 

The evidence is sufficient to justify the jury's verdict. There 

is an abundance of evidence, both direct and circumstantial, which would 

establish the defendant's criminal negligence in that the treatment or 

disciplinary action taken by the defendant was "without due caution or 

circumspection" within the meaning of section 94-2507(2), R.C.M. 1947. 

The nature and severity of the injuries indicate that the defendant's 

negligence was reckless and "such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances 

as to be incompatible with a proper regard for human life, or in other 

words, a disregard for human 1 ife or an indifference to consequences .I1 

State v. Powell, 114 Mont. 571, 576; 138 P.2d 949. 

Defendant Is 1 ast specification of error urges that the questions 

put to the court by members of the jury demonstrate that the jury was 

biased and guided by passion and prejudice in arriving at their verdict. 

Again, we cannot agree, The questions do not exhibit an affirmative showing of prejudice on the part of any juror as is required before error 

will be found. State v. Winter, 129 Mont. 207, 285 P.2d 149; State v. 

Mott, 29 Mont. 292, 307, 74 P. 728. The questions referred to do not 

demonstrate any preconceived prejudice toward the defendant before the 

evidence was presented; rather, they are reasonable reflections of perplexed jurors arising out of evidence presented at trial. This does not 
constitute reversible error. 

For the foregoing reasons, the judgment is affirmed. 

-G-q--L - - 

ciate Justice