No. 12075 INTHE 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 ThirteenthJudicial 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. JusticeJohn C. Harrison delivered the Opinion of the Court.

This isan appeal by the defendant, Jeralene Kye Henrich, from

ajudgment of conviction of involuntary manslaughter under the provisions of section 94-2507, R.C.M. 1947. The defendant was tried by ajury in the districtcourt of the thirteenthjudicial district, Yellowstone County, found guilty, and sentenced to serve two years intheMontana State Prison withone year suspended. From thisjudgment defendant appeals. On January 11, 1971, the Billings, Montana firedepartment received a call requesting it

### to proceed tothe 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 tothe boy which produced a mild response inthe form of movement of the arms and hands. Shortlythereafter, an ambulance arrived and took the boy to the family physician, 

### Dr. Paul Crellin. Enroute, the ambulance's resuscitator

was applied but without any furtherresponse. Upon arrival atthe doctor's office, 

### Dr. Crellinadministered mouth-to-mouth resuscitation without success. The boy never regained consciousness and was pronounced dead-on-arrival atSt. Vincents Hospital. 

### Dr. Gordon Cox, a 1 icensed physician and path01ogist

### ,performed

an autopsy the following day. His findings and testimony revealed that the deceased had a rupture of the 1iver, "an actual transection of the 1 iver" resulting in the liverbeing 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 isformed by one of the hardest bones inthe body. Itisvery thick and well protected, as I mentioned, by soft tissue, and requires an extensive force todeliver an amount of force tothis area which will fracture this bone."The skul1fracturewas of sufficient severity to have caused death, but itwas the doctor's opinion that death, inthis case, resulted from massive hemorrhaging of the transected liver. The boy bled todeath. Regarding the liver injury, the doctor testified the force required totransect the liver "in this fashion" had tobe a severe force and that 

### a "direct force was required" here because the spleen, which ismore susceptible to injury, was not ruptured. On cross-examination, 

### Dr. Cox indicated that his autopsy had not revealed any evidence of epilepsy inthe boy, but his findings should not be regarded as conclusive inthat respect. Itwas also the doctor's opinion that the skull fracturewas not self-inflicted, such as a fall, because the child was not heavy enough to generate the force required to fracture the skul1 bone. After the boy was pronounced dead, defendant made a statement to the Billings police and also testified attrial as 

### tothe events that took place on themorning of this unfortunate and tragic incident. Itisdefendant'suncontradicted, but alsouncorroborated testimony that on the morning of January 11, 1971, she arose at6:00 a.m. "to getmy husband off towork". 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 fouryear old son, Larry, who had been attempting todress young Carl, the deceased. Defendant got up and discovered that Carl had "alreadymessed his pants" so she took him into the bathroom where she partially cleaned him off and also spanked him witha 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 sidetofacilitatecleaning of his bottom. Defendant then placed Carl on the toilet seat and leftthe bathroom. She testified thereafter: "Iwaited approximately 5 or 10 minutes and then I went back to check on him. I found Todd (Carl's nickname) sittingcompletely 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 situp alone. Then he fell back down in the stool. I sathim up again. Hefell into the stool again and I picked him up and put his hands on the stool and I letgo 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 himup again and he fell again. I picked him up again, thinking he just lost his balance. I noticed then, that he wasn't doing iton 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 firstand 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 thiswas 2 weeks ago. I took him out of the bathroom 

### tothe 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 tobring him out of it. When this did not help, I went outside and got some snow and put iton 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 athim 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 firedepartment. Apparently, the episode in the bathroom had a twofold purpose: first, itwas another session indefendant's frustrating attempt to pottytrain Carl; and, second, itwas punishment for "messing his pants." 

### On cross-examination, defendant testified to the technique she had used when spanking Carl inthe bathroom. "I held both his ankles withone hand and 

### just lifted him up, his head and back were still laying on the f 1 oor

## ." 

### Dr. Cox testified inreference to the skull fracture: 

### " 

## *

## ** the only conceivable way to do itisby using the child'sweight as an advantage, inputting itinmotion, and striking a hard object, and this ismostly 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 intoa type of trance or seizure; stiffen up and fall forward; moments later he would actnormal again. Atthe 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 freemedical clinic if they feltthe child was handicapped? After the settlementof instructions and while the jury was deliberating, thejury submitted another question to the court: If we consider this an accident as per instruction number 27, isitthen 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 toa question on her instructions. On appeal, defendant has raised four issues forour review and consideration: 1

## . Whether evidence of defendant'sstriking 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 evidencewas sufficient to support the verdict. 4. Whether thejury questions submitted to the court demonstrated that thejury was biased and guided by passion and prejudice inarriving attheir verdict. Proceeding to defendant's first issue, we find that she was charged by information with "wrongfully, unlawfully, and feloniously" killing Carl Henrich. Itisdefendant's contention that such a pleading is a specific pleading of involuntary manslaughter and, as such, precludes the admissionof any evidence which would tend to prove a charge of voluntary manslaughter. Specifical ly

### ,defendant objects to the admission of testimony which a11eges 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 shewas charged. There isno merit inthis 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 injurymight have been inflicted. He testified on cross-examination there was no question as towhat caused the injuries. Itwas not his educated guess, but his scientificopinion, that the death occurred from the beating given. Defendant's second issue alleges that Carl'sdeath was the result of an accident and, as such, isexcusable homicide within the meaning of section 94-2511(I),R.C.M. 1947. That particular section provides that: "Homicide isexcusable 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 itiscommitted by accident while disciplining a child. However, such discipline must be executed with "usual and ordinary caution." Here, the evidence was sufficient towarrant thejury finding that such "usual and ordinary caution"

was not exercised. Dr. Cox testified that in order to fracture the basal part of the sku11, that "an extensive force" would be required because that bone isone of the hardest bones inthe body in addition to being we11protected by softtissue. 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 hithim several times "quite hard"; and that she lifted him by his legs while inclose proximity tothe bathtub. Considering the evidence and the testimony admitted attrial

### ,the question of whether or not the defendant exercised "usual and ordinary caution" within themeaning of section 94-2511(I),R.C.M. 1947, was one 

### tobe resolved solely by thejury. 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 ofthe defendant was

never established. With this we cannot agree. This Court has long held that the criminal agency of a defendantmay be established by circumstantial evidence. State

### v. Kindle, 71 Mont. 58, 227 P. 65; State

### v. Cor, 144Mont. 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) thedefendant was the only adult in Carl'spresence, (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 hitCarl 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) itwas extremely unlikely that those injuries could have been self-inflicted. On the other hand, there isno reasonable evidence which would suggest that Carl died of injuries inflicted in some other fashion. There

was an attempt by laywitnesses and the defendant to establish that Carl

was subject to occasional momentary seizureswhere he would stiffen up and go into a trance. Apparently, this testimony was designed to suggest Carl

was an epileptic or, atthe very least, suffered from some unknown malady. However, there was no expert testimony inthis regard. Itwas 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 inflict this injury ismuch greater than 30pounds." Itwas 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,therewas 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'scriminal negligence in that the treatment or disciplinaryaction taken by the defendantwas "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 adeparture from what would be the conduct of an ordinarily prudent or careful man under the same circumstances

as to be incompatiblewith a proper regard for human life, or in other words, a disregard for human 

### 1ife or an indifference to consequences.I1 

### State

### v. Powell, 

### 114Mont. 571,576; 138 P.2d 949. DefendantIs 

### 1ast specification of errorurges that the questions put to the court by members of the jury demonstrate that the jurywas 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. Statev. Winter, 129Mont. 207, 285 P.2d 149;State

### v. Mott, 29Mont. 292,307,74P. 728. The questions referred to do not demonstrate any preconceived prejudice toward the defendant before the evidencewas presented; rather,they are reasonable reflections of perplexed jurors arising out of evidencepresented at trial. This does notconstitute reversible error. For the foregoing reasons, thejudgment isaffirmed. 

# -G-q--L -- ciateJustice