Mary Harris v. The State, 28 Tex. Ct. App. 308

White, Presiding Judge. Appellant has been convicted of the murder of her infant babe, and her punishment has been assessed at a life term in the penitentiary. We are of opinion that the evidence establishing the corpus delicti is not sufficient to sustain the judgment in so far as the same is made to-appear in the record here before us. To warrant a conviction it was. necessary for the State to prove that the child was born alive; that it had an existence independent of the mother, and that afterwards its life was destroyed by the act, agency, or procurement of its mother, this defendant. Wallace v.

The State, 7 Texas Ct. App., 570; S. C., 10 Texas Ct. App., 255; Sheppard v. The State, 17 Texas Ct. App., 74. Defendant confessed that the child was born on Sunday night; that it was born alive; that she put it into Dr. Baldwin’s spring, and that it was alive when she put it in the spring. The child was found the following Wednesday. How, if the defendant’s confessions were sufficient by themselves perhaps we might hold that the corpus delicti had been sufficiently proved. These, however, in and of themselves, are not sufficient.

The corpus delicti consists not merely of an objective crime, but of the defendant’s agency of the crime; and it is well settled that unless the. corpus delicti in both these respects is proved, a confession is not by itself enough to sustain a conviction. It must be corroborated. This can seldom be done by direct or positive testimony, but it may as well be shown by circumstantial evidence. Willard v. The State, 27 Texas Ct. App., 386. How, what was the corroboration in this case?

The doctor who testified as an expert says: “I can not say positively whether the child was •ever alive, or whether it had ever breathed.” He dissected the child’s head, and found that the skull had not been fractured. He took out the lung and applied the hydrostatic test and found air in it, the usually accepted test that it had breathed. This was sufficient corroboration as to the fact that the child was born alive. Concede that the child had been born alive. Was it killed, or was it drowned? Evidently the doctor does not think it was killed by violence.

As to the chances and probabilities that it had been drowned, he does not say one word. Why did not he make an examination and give his opinion as to the fact of drowning? What evidence of drowning is there outside the confession? Was the child found in Dr. Baldwin’s spring? If so, who found it there, and under what circumstances? Was Dr. Baldwin’s spring "of sufficient depth to drown the child? Was the spring in a public or secluded place? All these facts might have been testified to, and yet the record contains no such evidence.

The first it discloses of the body is that somebody had found it, and it was under a box near the spring. Who found it in and took it out of the spring? Before we are asked to sanction so serious a verdict and judgment, even on the confession of a defendant, there ought to be furnished us some circumstances tending to corroborate that confession, since the law will not permit a conviction to stand alone upon the confession. In this case, because the evidence is insufficient to establish the corpus delicti, the judgment is reversed and the cause is remanded. Reversed and remanded.

Judges all present and concurring.