A. A. Steagald v. The State, 24 Tex. Ct. App. 207

Hurt, Judge. Appellant stands convicted of the murder of an infant, the child of his daughter; the jury finding him guilty of murder of the first degree and assessing his punishment at confinement in the penitentiary for life. We have carefully examined this record, both with reference to assigned and unassigned errors, and the examination leads us. to the conclusion that it presents but one question which requires discussion.

Upon the trial the State propounded this question to Doctor Ferris: “What is your opinion, from the examination you made of the body, as to how the injuries you saw, to wit, the arm broken, the neck broken and the skull crushed, was done?” This question was objected to by appellant, because “ it called for the opinion of the witness as an individual, and not as an expert; was mere speculation on the part of the witness, and was matter about which the jury were as competent to judge as the witness.” The objection being overruled, the witness answered: “ I am of opinion that the only way it could have been done, or the only way I can imagine, is that the party put the infant on its face, and placed his boot heel, on the back of the head, and caught hold of the right arm and pulled it, and stamped on the back of the head, crushing the skull and breaking the neck and arm.” “Witness Ferris also stated that this opinion was not as an expert, but as individual, and the injuries might have been inflicted in many other ways.” The objection should have been sustained upon the grounds urged.

Incompetent, however, as it clearly was, did the opinion of the witness, as to the manner in which the injuries were inflicted, operate to the injury of appellant’s rights? Do the facts stated in the opinion of the witness tend to establish the corpus delicti. That is to say, that the child met its death, after being born alive, at the hands of some person by violence? They certainly do; but was not this completely and conclusively established by competent evidence, independent of Doctor Ferris’s opinion.

Doctor Bittick, who attended at the birth of the child, says: “ The child’s arm and neck were not broken, and its skull was not crushed, nor were any wounds or bruises on it when it was born, or when I last saw it alive. I stayed half, or perhaps an hour, after the birth of the child, and then left and went home. When I left the child was lying across a small bed at the foot of its mother’s bed, still unwashed and undressed, wrapped in a piece of quilt.

It was crying occasionally and breathing all right, and I saw nothing whatever the matter with it.” Doctor Barnett says: “I do not think that a new bom babe’s neck could be broken, head crushed and arm broken, by an accidental fall of any kind. I do not see how it is possible for such a combination of injuries to be produced by accident.” To the same effect is the testimony of Doctors Watson, Black and Egan.

For the defense, Doctor Thurmond testified: “If I should see a contusion or, discoloration to any great extent on the arm of a dead body, I would conclude that the injury which inflicted discoloration was given before death.” Opinion delivered November 9, 1887.

Doctor Watson, for defendant, says: “If I should find the dead body of a child, with its neck broken, its skull crushed in to the depth of half an inch, its arm broken, discolored and blood shotten, I should conclude that it had come to its death by violence, and not from natural causes.” On the same side and to the same effect also testified Doctor Modrall. It was proven by several witnesses that after a short search they found the dead child hid in the garret of defendant’s house; that there was a hole in the ceiling, which was covered with a sack nailed over closely.

The body was found in a box, the neck and arm broken and the skull crushed. 17ow, we believe that if it be possible to establish any fact conclusively, the fact of the corpus delicti, that is, that the child was born alive and came to its death by violence, this fact is so established in this case. And, conceding that the opinion of Doctor Ferris tended to prove the corpus delicti, since there could not be a rational doubt as to this, the opinion could not have injured appellant’s rights. Did the opinion of Doctor Ferris in any way point out the defendant as being the person who inflicted the injuries?

We think not; nor is this effect claimed by counsel who so ably represent the appellant here. But it may be contended that appellant was prejudiced, because the method of the infliction, as exhibited in Doctor Ferris’s opinion, presents a degree of inhuman barbarity almost without a parallel in the history of crime. The imagination is not fertile enough to invent a method by which the injuries which were in fact inflicted could be abated of their cruel brutality.

Concede that the wounds were inflicted in any other way than as surmised by Doctor Ferris, none could be conjectured which would relieve the killing of its hideous enormity. That the appellant was thus prejudiced is contradicted by the punishment assessed. If he was the perpetrator of this foul deed, there can be no doubt that the crime is murder in the first degree; there is no lower grade in the case. The jury had the right to decree his death, but chose the more merciful punishment. The judgment is affirmed. Affirmed.