State v. Voges ( 1936 )

¹ Reported in 266 N.W. 265. This case is here on a certified question.

Defendant Emma Voges and Tobias Voges, her husband, were indicted for first degree murder. On trial the jury returned a verdict of not guilty as to Tobias Voges and a verdict of guilty of manslaughter in the second degree as to Emma Voges. The district court stayed sentence and certified to this court the following question: "Did the evidence tend to show or prove facts constituting the public offense charged in the indictment, or any lesser degree thereof?"

Defendants had living with them at their farm home, prior to and at the time of the events hereinafter related, their only child, Esther, an unmarried girl of about 20 years. During the mouth of December, 1934, Esther was observed by many to be pregnant. About ten o'clock on the evening of January 8, 1935, she became ill and remained so until eight o'clock the next morning. It is clear that her pains were those normally accompanying parturition. During the night she begged her mother to call a doctor, but defendant refused to do so, and the doctor was not called until noon the next day. Defendant remained in the same room with Esther all during the night of January 8-9, while Tobias Voges and one Walter Vanselow occupied a room adjoining Esther's.

On the afternoon of January 9 Esther was taken to a hospital, where she remained 11 days. After she had entered the hospital she was cared for by a nurse and a physician. The nurse owned and operated the hospital. In taking care of Esther the nurse worked with the doctor part of the time and otherwise worked independently of him.

Shortly after the date of the alleged birth, Esther and her mother were questioned as to what had become of the body of the baby. The answer was to the effect that they did not know "if they threw it in the stove, or in the toilet." When the sheriff searched the outhouse for the corpus delicti, defendant Emma Voges, when questioned respecting the body of the baby, gave contradictory and evasive answers. Later, among ashes taken from a stove in the room wherein Esther allegedly gave birth to the child, were found a small temporal bone and other unidentified pieces of bone, which according to the pathologist who testified for the state may have been the bones of a small child, infant, or of a small animal.

At the trial no evidence was offered on behalf of the defendants, and they did not take the stand. Esther and Walter Vanselow exercised their privilege against self-incrimination whenever any question material to the issue was put to them. Over objection, the nurse who attended Esther was permitted to testify that in her presence a placenta was delivered from Esther by the doctor. She also testified that after the doctor left, as part of the hospital routine and not under the direction of the doctor, she examined, weighed, and measured the placenta; that the conditions which she found indicated this to be a normal birth; and in response to a question whether or not there was anything about the placenta by which she could tell whether the child had been born alive or dead, stated: "If the baby is a stillborn, it shows it has been dead for some time, unless it was hurt during the delivery from instruments, and where a baby is born dead there is usually some odor, or some defect with the placenta. Where there is a perfectly normal delivery there is none." She further stated that there was no odor or defect in this placenta. All this testimony was objected to on the ground that it violated 2 Mason Minn. St. 1927, § 9814, which protects the privilege existing between a doctor and his patient.

The nurse also was allowed to testify that Esther, while in the hospital, stated to her: "If I had known I was to have a baby I would have married Walter * * *. To think that my baby was born into this world without any clothes * * *. What will happen to babies when they are not baptized and they die?" This was objected to as hearsay.

The evidence, without considering the testimony objected to, clearly proves that a child was born to Esther sometime during the night of January 8-9. It may well be doubted whether the evidence as a whole, including the questionable testimony, establishes that the child was born alive. There is no direct evidence that anyone saw the child alive or dead. No body was found which would enable medical experts to determine whether life had existed in it independent of the mother. In that respect the instant case differs from State v. Sogge, 36 N.D. 262,161 N.W. 1022, wherein the court held that the question of corpus delicti was for the jury when medical experts had examined the body of the child and had determined that it likely had lived several hours after birth. However, it is unnecessary to determine this question or to pass on any of the objections made to the testimony of the nurse. Assuming that all the testimony in the case was properly received and that it sufficiently establishes that the child was born alive, the evidence is insufficient to justify a verdict of guilty of the offense charged in the indictment or any lesser degree thereof. Resolving all questions up to this point in favor of the state, there still remains one question: Was death caused by a felonious act or failure to act by any of the persons involved? The record does not contain an answer to this question. There is no evidence that the child did not die from natural causes or that its death was due to criminal neglect by defendants. Nowhere in the record is there any testimony showing the cause of death or the attendant circumstances. In every case of homicide a criminal agency must be shown. Without such proof a conviction of murder or manslaughter must be based on speculation and conjecture. The rule to which we adhere is succinctly stated in Underhill, Criminal Evidence (4 ed.) § 545:

"In homicide the necessary constituents of the corpus delicti, the death of a human being and that a criminal agency produced it, must be shown. * * * The burden is upon the state to prove each element: of the corpus delicti beyond a reasonable doubt."

There is no question that the defendant Emma Voges displayed a gross and culpable disregard of her duty to her daughter. But there is no evidence establishing or tending to establish that this conduct, however reprehensible it may be, was the cause of the child's death. Conjecture and speculation cannot take the place of proof.

The question certified is answered in the negative.