People v. Kirby

Moore, J.

On the evening of July 4, 1921, Dr. Charles S. Lane was called to attend Alice Kirby, defendant’s daughter. He made an examination which satisfied him that she was about to become a mother, which information he immediately imparted to her mother. There was conversation between the doctor and defendant relative to delaying the operations of nature until Alice could be gotten away. The doctor administered a hypodermic to Alice with the idea that nature might be delayed and Alice could be removed. The doctor returned to his office for his instruments. He made a second physical examination which satisfied him that she was to be delivered “right away.” He observed on this visit that the opiate had taken effect and that the patient was under its influence. The defendant inquired of the witness as to the probabilities of the expected child being born alive, which inquiry the witness was unable, at that time, to answer. There was conversation between defendant and the witness to the effect that the child would not be born alive, , and that if it was, it must be gotten away.

The doctor then left the Kirby home and returned in about 20 minutes. The expected child was born during the interval that he was absent. The doctor performed the usual functions of a physician, and rendered the necessary medical aid to both parent and child. The infant was handed to the defendant who placed it in a basket on some clothes. At this time all the parties, including defendant, were in the same room. The infant was lying face down in the basket. On observing this the doctor said to defendant: “The baby will smother in that position.” Defendant replied: “Do you'care?” The doctor said that he did. The doctor placed the child in the basket in proper position.

The doctor next saw the infant about 10 or 15 minutes later in the same basket, but down in the basement. It was a very hot day. The doctor gave the infant the attention that it required, such as tying the natal cord, and left the premises, going out the back way, at request of defendant. The infant was alive when last seen by the doctor. The doctor called at the Kirby home the next day but saw nothing of the baby. On this visit the doctor was informed by defendant that her husband had taken the baby away. A birth certificate was made out by the doctor and filed.

Bennett Houston, a witness for the people, testified that on the night of July 4, 192Í, at about the hour of 12 p. m. while sitting on his porch at his home which was adjacent to the Kirby home, he heard the sound of a child crying. The fact that a child had been born to Alice Kirby became a matter of public knowledge. Complaints were made to the prosecuting officers of the county, which resulted in official action. Hartwell J. Shaw and Thomas B. Thurlby, deputy sheriffs of the county, went to the Kirby home in Hudson for the purpose of making investigations.

Hartwell J. Shaw, a witness for the people, testified that in company with Deputy Thurlby he visited the Kirby home on or about the 21st day of July, 1921; that on this visit defendant stated to him that the child was dead, and that her husband, Charles,, had taken it away; that the child had not lived quite an hour. We quote from the testimony:

“I said to her then: ‘What ailed the child?’ She said that it had died through her neglect. She said: ‘You know that I couldn’t take care of the child and my daughter too, and my daughter came first.’ ”

There was further conversation in which the defendant again stated that the child was dead.

Thomas B. Thurlby, who accompanied Shaw, a witness for the people, testified to substantially the same conversation. His version is as follows:

“Why, she said that it had died from neglect, and I asked her, whose, and she said: ‘From my own neglect because I couldn’t take care of the child and its mother too.’ ”

Defendant’s daughter, Alice, was present when the conversation took place, and her version of what was said differs somewhat from the statements made by witnesses Shaw and Thurlby. .She was sworn as a witness for the people, and testified that Shaw said to the defendant: “Then the baby must have died from neglect,” and that defendant then said “call it what you may, but my first duty was to my daughter, I was caring for her.”

Defendant’s husband, Charles Kirby, the daughter, Alice, were both arrested without complaint or warrant and lodged in the county jail. Later, cousins of defendant’s husband, residing in Hillsdale county, were likewise arrested, and lodged in the Hillsdale county jail. All were ultimately released without any charge being laid against them. The defendant, Matie Kirby, was arrested on the charge of murder, on complaint and warrant. An examination was had, and she was bound over to the circuit court and informed against on the charge of murder in the first degree.

At the close of all the testimony counsel for defendant moved for a directed verdict for several reasons, among them:

“(1) There is not a scintilla of evidence in this case showing the death of this baby, except the statements or alleged statements of the defendant, and it is the universal holding of the courts of the land that . no statements or confessions of defendants can be used until the corpus delicti is established by some other proof. * * *

“(2) There is absolutely no proof of any kind that if the infant is dead that it was caused by criminal agency, and that is another necessary element and must be shown outside of statements of the defendant. * * *

“(3) Even though they had shown that the infant was dead, and that it was caused by a criminal agency, there is absolutely no proof in this case to connect this defendant with that agency, and there is nothing here to go to the jury.” * * *

The trial judge seemed to be in doubt as to what he ought to do, but decided to take the verdict of the jury. He instructed the jury that under the evidence they could not convict of murder in the first degree, or murder in the second degree, but he would leave to the jury the question of manslaughter. We quote from the charge:

“Manslaughter is the unlawful and felonious killing of another, without malice, either express or implied.

“To warrant a conviction of manslaughter you must find under the evidence and these instructions beyond all reasonable doubt, four things:

“(1) That the baby was born alive.

“(2) That the baby referred to in the information is dead.

“(3) That the baby came to its death by criminal means.

“(4) That this defendant was the criminal agent that caused the death.”

The jury returned a verdict of manslaughter. The case is here on exceptions before sentence.

It is claimed by counsel for the defendant that the extrajudicial statements of defendant should not have been received, and with them eliminated that only the first proposition submitted to the jury by the judge had been proven.

It is also claimed that with the extra-judicial statements received the proofs fall short of showing beyond a reasonable doubt the truth of either of the last two propositions submitted to the jury and that a verdict of acquittal should have been directed.

An interesting case is that of People v. Roach, 215 N. Y. at p. 600 (109 N. E. 618, Ann. Cas. 1917A, 410).

The case of the People v. Simonsen, 107 Cal. at p. 346 (40 Pac. 440), discusses the question of corpus delicti. We quote:

“The term of ‘corpus delicti’ means exactly what it says. It involves the element of crime. Upon a charge of homicide, producing the dead body does not establish the corpus delicti. It would simply establish the corpus; and the proof of the dead body alone, joined with a confession by the defendant of his guilt, would not be sufficient to convict. For there must be some evidence tending to show the commission of a homicide before a defendant’s confession would be admissible for any purpose.”

Counsel for each side cite a great many authorities, the effect of which is to show there is a conflict among them, but we think it not necessary to go outside of our own State.

In People v. Lambert, 5 Mich. 365 (72 Am. Dec. 49), it was said:

“The only other question of importance in this ease is, Whether a prisoner may be convicted of polygamy upon his own confession, merely, of the first marriage.

“It is declared by Russell and Roscoe to be a matter of doubt. 1 Russ, on Crimes, 217, 218; Roscoe Cr. Ev. 312. Truman’s Case, there referred to, was not a case of mere confession, but there was also documentary evidence. In Regina v. Simmonsto, 1 Car. & Kir. 164, where the admission was of a marriage very much like the first marriage here alleged, that is, of a marriage in New York by a Presbyterian minister, it was doubted whether the admission was enough to prove the marriage to have been a valid one under the laws of New York. The judge allowed the case to go to the jury advising them that the law of New York was material; and a verdict was found of not guilty. The subsequent cases decided, in effect, that a foreign law could not be proved by any such testimony. And in Regina v. Flaherty, 2 Car. & Kir. 781, it was held expressly that there must be evidence of the first marriage beyond the mere admission of the prisoner. The English law must, we think, be considered as against allowing a conviction for this .offense on mere admissions. There is a consideration hinted at in some of the cases which has much force. An admission of a valid marriage, is 'an admission of law as well as of fact, and such admissions are never regarded as of much weight; and certainly never ought to satisfy a court of what the law is, where that becomes material. 1 Greenl. Ev. § 96. Mr. Greenleaf expresses the opinion that the corpus delicti should be proved by other evidence before a conviction should be permitted. It was so held in a case of bigamy by the supreme court of New York, in People v. Humphrey, 7 Johns. 314. And this law has since been recognized in several cases in that State. See Gahagan v. People, 1 Park. Cr. R. 378. There are undoubtedly some authorities to the contrary; but the weight of reason is, we think, in favor of requiring further evidence.

“Some confusion has been created by not distinguishing between the various kinds of confessions. A deliberate confession in open court is treated as sufficient evidence, always, as far as it goes, if made on the trial of the cause, and perhaps even on the preliminary hearing, provided it is made freely. It is regarded as proof on the same principle with a plea of guilty, because the accused can not be supposed to act without consideration. But confessions made extra judicially are often misunderstood, and easily perverted. It will be found that very few, if any, convictions have been allowed without some cumulative evidence. See People v. Hennessy, 15 Wend. (N. Y.) 147, for some remarks on this subject. * * *

“No doubt in these, as in all other criminal prosecutions, circumstantial evidence of a conclusive nature may often avail, where direct testimony is inaccessible. But it must be testimony not reasonably capable of any other interpretation. It must be testimony from which nothing but guilt can, in the natural order of things, be deduced. Commonwealth v. Webster, 5 Cush. (Mass.) 295 (52 Am. Dec. 711)”

In the case of the People v. Hall, 48 Mich, at p. 484, (42 Am. Rep. 477), Justice Campbell, speaking for the court, said:

“As there are other defects which must lead to a new trial, we need not now go further in this discussion beyond the suggestion that this is only one of several indications that the trial lacked some of the elements of a calm judicial proceeding, and that matters appear to have been lost sight of which the rules governing the administration of justice required those conducting the prosecution to keep in mind.

“The first of these, and one which in several different ways was brought to the attention of the court below, but ruled against, was the rule which requires the corpus delicti to be shown, before any other testimony is directed against the prisoner. In many and perhaps in most cases the order of' proof is not very essential. But in cases of homicide and in others where justice demands it, the prosecution should not be allowed to proceed further until the death and its character shall have been shown, as far as the testimony can be separately given, and especially so far as can be shown from the post mortem examinations.”

In a case where defendant was charged with the attempt to kill and murder, Justice Cooley, speaking for the court, said:

“The respondent was convicted of an attempt to murder one Allen by administering morphine to him. The evidence that any such offense was committed was the respondent’s admission. * * *

“An unsupported confession should not be received as sufficient evidence of the corpus delicti. People v. Hennessy, 15 Wend. (N. Y.) 147; Stringfellow v. State, 26 Miss. 157 (59 Am. Dec. 247) ; State v. Guild, 5 Halst. (N. J. Law) 163 (18 Am. Dec. 404). The respondent on the case submitted to the jury was entitled to an acquittal, and the conviction must be set aside and a ^discharge ordered.” People v. Lame, 49 Mich..340.

In People v. Swetland, 77 Mich. 53, Justice Morse, speaking for the court, said:

“It is claimed that, until the corpus delicti was proven, the statements of the respondent to Knappen were not admissible. There are some cases where the corpus delicti — generally in homicide — is clearly separated and distinct from the question as to who committed the offense, if any is found to have been committed. In such cases the evidence to establish the corpus delicti must first be given, before acts or admissions of the accused can be put in evidence.”

See People v. Ranney, 153 Mich, at p. 295 (19 L. R. A. [N. S.] 443).

In one of the last' cases in which an opinion was written by Justice Stone, he expressed’himself as follows:

“Did the court err in its ruling with reference to the necessity of first proving the corpus delicti? We recognize the rule that the death and its character should first be shown, as stated in People v. Hall, 48 Mich. 485 (42 Am. Rep. 477). See, also, People v. Swetland, 77 Mich. 53; People v. Ranney, 153 Mich. 293 (19 L. R. A. [N. S.] 443), and People v. Kimbrough, 193 Mich. 330. We have called attention to the early testimony in the case relative to the statement of the defendant that an Indian had killed Liberty, and also the testimony of Mathews referring to the examination of the body and its condition. We think that this rule requiring the showing of the corpus delicti in a homicide case, before the admission of other testimony, is a wise one that should be observed in the trial of such cases. We do not understand that it is necessary, however, to show the finding of the dead body, and its condition by medical testimony ; and we think that the rule laid down heretofore by us was substantially complied with in this case in the evidence of the finding of the dead body, and the appearance of the head and face of the deceased, showing acts of violence. There was later ample, medical testimony. We think however that trial courts cannot be too particular in following the wholesome general rule that in such cases it is necessary to prove the corpus delicti first. That there are exceptions where the same set of facts, in cases of circumstantial evidence, tend to connect the defendant with the commission of the crime, and also at the same time to prove the corpus delicti has been held, and the rule has been somewhat relaxed in such cases.” People v. Jackzo, 206 Mich. 183.

We do not think a case of homicide in this court can he shown where a different rule has been allowed.

The case of People v. Pretswell, 202 Mich. 1, does not relax the rule. In that case there are two opinions. The first one favors a reversal because the corpus delicti was not shown. The second opinion favors affirmance because counsel admitted in open court that the death of the boy was established.

In People v. Kimbrough, 193 Mich. 330, the court was of the opinion that inasmuch as the .little girl whose death was charged, when last seen, was near the manufacturing plant where the defendant attended the furnace, and human bones of a child of her approximate age were found in the ashes, that the jury were justified in finding the corpus delicti proven.

In the instant case no witness testified that the babe was dead. No one found its remains, though the back yard was dug up, cemeteries were searched, and the furnace was examined. We think under the authorities cited it should be held that the people have failed to show beyond a reasonable doubt that defendant is guilty of manslaughter.

The judgment is reversed and the defendant is discharged.

Fellows, J., concurred with Moóre, J.