                                       No. 12075

          I N THE SUPREME CBmT OF THE STATE O M N A A
                                             F OTN

                                         1972



THE STATE O MQWANA,
           F

                                P l a i n t i f f and Respondent,

      -VS   -
JERALENE HENRICH,

                                Defendant and Appellant.



Appeal from:       D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                   Honorable Robert Wilson, Judge p r e s i d i n g .

Counsel of Record:

      For A p p e l l a n t :

                J ~ h n. Adams, Jr. argued, BiTlings, Montana.
                      L
      For Respondent:

                Hsn, Robert L, Woodahl, Attorney General, Helena,
                 Montana.
                David V, Gliko, A s s i s t a n t Attorney General, argued,
                 Helena, Montana.
                Harold F, Hanser, County Attorney, B i l l i n g s , Montana.
                C l i f f o r d Schleusner, Deputy County Attorney, argued,
                 B i l l i n g s , Montana,



                                                  Submitted:          A p r i l 20, 1972

                                                      Decided:      JUN    -8@
Filed :
                -s~~
Mr. J u s t i c e John C. Harrison delivered the Opinion of the Court.

            T h i s i s an appeal by the defendant, Jeralene Kye Henrich, from
a judgment of conviction of involuntary manslaughter under the provisions
of section 94-2507, R.C.M.               1947.      The defendant was t r i e d by a jury i n
the d i s t r i c t court of t h e t h i r t e e n t h judicial d i s t r i c t , Yellowstone
County, found g u i l t y , and sentenced t o serve two years i n the Montana
S t a t e Prison w i t h one year suspended.              From this judgment defendant appeals.
            On January 11, 1971, the B i l l i n g s , Montana f i r e department re-
ceived a c a l l requesting i t t o proceed t o the home of the defendant.                         Upon
a r r i v a l , Captain Benton Pattee found two year old Carl William Henrich, J r .
on the living room couch wrapped i n a blanket.                       Defendant, the stepmother
of the c h i l d , indicated t o Captain Pattee t h a t the child was having d i f f i -
culty breathing.          A r e s u s c i t a t o r was applied t o t h e boy which produced a
mild response i n the form of movement of the arms and hands.
            Shortly t h e r e a f t e r , an ambulance arrived and took the boy t o the
family physician, Dr. Paul Crell i n .                  Enroute, the ambulance's r e s u s c i t a t o r
was applied but without any f u r t h e r response.
            Upon a r r i v a l a t the doctor's o f f i c e , Dr. Crell i n administered
mouth-to-mouth resuscitation without success.                       The boy never regained
consciousness and was pronounced dead-on-arrival a t S t . Vincents Hospital.
            Dr. Gordon Cox, a 1 icensed physician and path01 o g i s t , performed
an autopsy the following day.                  His findings and testimony revealed t h a t the
deceased had a rupture of the 1i v e r , "an actual transection of the 1 iver"
resulting in the l i v e r being s p l i t into two parts; and a "large prominent
f r a c t u r e of the basal portion of the skull involving the r i g h t occipital
bone".
            Dr. Cox f u r t h e r t e s t i f i e d :
            " * * * the basal part of the skull i s formed by one
            of the hardest bones i n the body. I t i s very thick
            and well protected, a s I mentioned, by s o f t t i s s u e ,
            and requires an extensive force t o d e l i v e r an amount
            of force t o t h i s area which will f r a c t u r e t h i s bone."
The skul 1 f r a c t u r e was of s u f f i c i e n t severity t o have caused death, b u t
i t was the doctor's opinion t h a t death, i n t h i s case, resulted from
massive hemorrhaging of the transected l i v e r .              The boy bled t o death.
            Regarding the l i v e r injury, the doctor t e s t i f i e d the force required
t o t r a n s e c t the l i v e r "in t h i s fashion" had t o be a severe force and t h a t a
" d i r e c t force was required" here because the spleen, which i s more suscep-
t i b l e t o injury, was not ruptured.
            On cross-examination, Dr. Cox indicated t h a t his autopsy had not
revealed any evidence of epilepsy i n the boy, but his findings should not
be regarded as conclusive i n t h a t respect.              I t was a l s o the d o c t o r ' s opin-
ion t h a t the skull f r a c t u r e was not s e l f - i n f l i c t e d , such as a f a l l , because
the child was not heavy enough t o generate the force required t o f r a c t u r e
the skul 1 bone.
            After the boy was pronounced dead, defendant made a statement t o
the Billings police and a l s o t e s t i f i e d a t t r i a l as t o the events t h a t took
place on the morning of t h i s unfortunate and t r a g i c incident.                      I t i s defend-
a n t ' s uncontradicted, but a l s o uncorroborated testimony t h a t on the morning
of January 11, 1971, she arose a t 6:00 a.m. " t o g e t m husband off t o work".
                                                          y
Since none of her three boys were awake when her husband l e f t , defendant
went back t o bed.       Around 9:20 a.m. she was awakened by her four year old
son, Larry, who had been attempting t o dress young Carl, the deceased.                                    De-
fendant got up and discovered t h a t Carl had "already messed his pants" so
she took him into the bathroom where she p a r t i a l l y cleaned h i m off and also
spanked h i m w i t h a twelve inch long s t i c k .        After spanking Carl, defendant
"grabbed him by the arm and swung him around against t h e tub" and l a i d h i m
over the s i d e t o f a c i l i t a t e cleaning of h i s bottom.       Defendant then placed
Carl on the t o i l e t s e a t and l e f t the bathroom.        She t e s t i f i e d t h e r e a f t e r :
            "I waited approximately 5 or 10 minutes and then I
            went back t o check on him. I found Todd (Carl ' s
            nickname) s i t t i n g completely down on the stool b u t
            h i s arms were s t i l l holding him. I s a i d , 'Todd s i t
            up' b u t he wouldn't so I repeated i t . Then I s a t
            h i m up when he did not s i t up alone. Then he f e l l
            back down in the s t o o l . I s a t him u p again. H   e
            f e l l i n t o the stool again and I picked h i m up and p u t
            h i s hands on the stool and I l e t go and he f e l l
            completely off on the f l o o r . I picked h i m up and
            stood him up and he f e l l again on the f l o o r . Then I
            picked h i m up again and he f e l l again. I picked him
            u p again, thinking he just l o s t h i s balance. I
            noticed then, t h a t he wasn't doing i t on purpose so
            I kept trying t o stand h i m on his f e e t . - His arms
            and legs were limp and he was real pale and h i s eyes
            r o l l e d . I knew something was wrong so I s t a r t e d
            h i t t i n g h i m hard on the back f i r s t and then on his
            chest. I was doing t h i s because I thought he had a
            temper tantrum and was holding h i s breath, he had a
            habit of holding i t and I have spanked h i m f o r i t .
            The l a s t time he did t h i s was 2 weeks ago. I took
            h i m out of the bathroom t o the l i v i n g room and l a i d
            him on the f l o o r . I shook h i m and everything trying
            t o bring h i m out of i t . By everything, I mean I
            t r i e d h i t t i n g q u i t e hard trying t o bring him out of
            i t . When t h i s did not help, I went outside and got
            some snow and put i t on his face. H did not re-   e
            spond. H j u s t t r i e d t o cry and gasped. I t h i n k
                            e
            he was trying t o catch h i s breath, then I s t a r t e d
            shaking h i m and slapping his face again. Then I
            realized something was r e a l l y wrong because I
            couldn't bring him out of i t . I looked a t h i m and
            h i s 1ips were turning blue and he was real white.
            Then I ran upstairs * * *."

She then ran t o a neighbor's apartment and called the f i r e department.
            Apparently, the episode in the bathroom had a twofold purpose:
f i r s t , i t was another session i n defendant's f r u s t r a t i n g attempt t o potty-
t r a i n Carl; and, second, i t was punishment f o r "messing his pants."             On
cross-examination, defendant t e s t i f i e d t o the technique she had used when
spanking Carl i n the bathroom.
            " I held both h i s ankles w i t h one hand and just l i f t e d
            h i m up, his head and back were s t i l l laying on the
            f 1oor ."
Dr. Cox t e s t i f i e d i n reference t o the skull f r a c t u r e :
            " * * * the only conceivable way t o do i t i s by
            using the c h i l d ' s weight a s an advantage, i n put-
            ting i t i n motion, and s t r i k i n g a hard object, and t h i s
            i s mostly done by swinging the child--".
            Defendant produced several witnesses who a l l t e s t i f i e d they had
actual knowledge of the way defendant treated Carl and, i n t h e i r 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 t h a t
during the times they had observed Carl, t h a t occasionally he would go i n t o
a type of trance o r seizure; s t i f f e n up and f a l l forward; moments l a t e r
he would a c t normal again.
           A t the end of the t r i a l b u t before settlement of i n s t r u c t i o n s ,
several written questions were submitted by members of the jury t o the
court.     Two of the questions were as follows:
            1 . The mother having three children t o take care of should have
been up and taking care of t h e i r needs e a r l i e r than 9:30.          W y wasn't she
                                                                              h
up?
            2.   Wy was the child not given medical treatment through welfare
                  h
o r f r e e medical c l i n i c i f they f e l t the child was handicapped?
           After the settlement of instructions and while the jury was del iber-
a t i n g , the jury submitted another question t o the court:              If we consider
this an accident as per instruction number 27, i s i t then involuntary man-
slaughter?
            In passing, we note t h a t instruction No. 27 had been defendant's
offered instruction No. 10.          Therefore,no objection can be made by defendant
t o a question on her instructions.
           On appeal, defendant has raised four issues f o r our review and
consideration:
            1 . Whether evidence of defendant ' s s t r i k i n g and beating Carl was
properly admitted under the pleadings.
            2.   Whether C a r l ' s death was an accident within the purview of
section 94-2511, R.C.M.       1947, thereby e n t i t l i n g defendant t o an a c q u i t t a l .
            3.   Whether the evidence was s u f f i c i e n t t o support t h e verdict.
            4.   Whether the jury questions submitted t o the court demonstrated
t h a t t h e jury was biased and guided by passion and prejudice i n arriving
a t t h e i r verdict.
            Proceeding t o defendant's f i r s t issue, we find t h a t she was charged
by information w i t h "wrongfully, unlawfully, and feloniously" k i l l ing Carl
Henrich.     I t i s defendant's contention t h a t such a pleading is a s p e c i f i c
pleading of involuntary manslaughter and, as such, precludes the admission
of any evidence which would tend to prove a charge of voluntary manslaughter.
Specifical ly , defendant objects t o the admission of testimony which a1 1eges
that she struck and beat her child.         She contends t h a t t h i s evidence i s
evidence of intent and therefore evidence of a crime different from t h a t
with which she was charged.
          There i s no merit i n t h i s 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 t h i s regard was an opinion of Dr.
Cox as to how the skull fracture and l i v e r injury might have been i n f l i c t e d .
H t e s t i f i e d on cross-examination there was no question as t o what caused
 e
the injuries.     I t was not his educated guess, b u t his s c i e n t i f i c opinion,
that the death occurred from the beating given.
          Defendant's second issue alleges t h a t Carl ' s death was the r e s u l t
of an accident and, as such, i s excusable homicide within the meaning of
section 94-2511 ( I ) , R.C.M.   1947. That particular section provides that:
           "Homicide i s excusable 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 t h i s section, homicide i s excusable i f i t i s committed by
accident while disciplining a child.         However, such discipline must be
executed with "usual and ordinary caution."           Here, the evidence was suf-
f i c i e n t t o warrant the jury finding t h a t such "usual and ordinary caution"
was not exercised.      Dr. Cox t e s t i f i e d t h a t in order to fracture the basal
part of the sku1 1 , that "an extensive force" would be required because
that bone i s one of the hardest bones i n the body in addition to being
we1 1 protected by s o f t tissue.    The doctor further t e s t i f i e d t h a t the trauma
t o the l i v e r "had t o be of severe force".    The nature of the skull fracture
and the l i v e r injury would seem t o rule out the possibility t h a t "usual and
ordinary caution" had been exercised.
             In addition t o the nature of the i n j u r i e s here, we a l s o have
the testimony of the defendant which r e c i t e s t h a t she "swung" the child
over the bathtub;           t h a t she h i t h i m several times "quite hard"; and
t h a t she l i f t e d him by h i s legs while i n close proximity t o t h e bathtub.
Considering the evidence and the testimony admitted a t t r i a l                  , the   question
of whether or not the defendant exercised "usual and ordinary caution"
within the meaning of section 94-2511 ( I ) , R.C.M.                  1947, was one t o be re-
solved s o l e l y by the jury.          S t a t e v. Kuum, 55 Mont. 436, 178 P.2d 288.
             Defendant a l s o contends t h a t the evidence was i n s u f f i c i e n t t o
support the verdict; t h a t the criminal negligence o f the defendant was
never establ ished.          With t h i s we cannot agree.
             This Court has long held t h a t the criminal agency of a defend-
a n t may be established by circumstantial evidence.                     S t a t e v. Kindle, 71
Mont. 58, 227 P. 65; S t a t e v. Cor, 144 Mont. 323, 396 P.2d 86.
             Reviewing the evidence, we find t h a t (1 ) Carl was in good health
on the morning of January 11, 1971, (2) t h e defendant was the only a d u l t i n
Carl ' s presence, ( 3 ) defendant admitted being angry with Carl f o r "messing
h i s pants", (4) defendant grabbed Carl "by the arm and swung h i m around
against the tub", (5) defendant h i t Carl with a s t i c k and her f i s t s several
times "quite hard", (6) Carl died s h o r t l y t h e r e a f t e r of i n j u r i e s t h a t re-
quired a "severe force" t o i n f l i c t , and (7) i t was extremely unlikely t h a t
those i n j u r i e s could have been s e l f - i n f l i c t e d .
             On the other hand, there i s no reasonable evidence which would
suggest t h a t Carl died of i n j u r i e s i n f l i c t e d in some other fashion.        There
was an attempt by lay witnesses and the defendant t o e s t a b l i s h t h a t Carl
was subject t o occasional momentary seizures where he would s t i f f e n up and
go i n t o a trance.       Apparently, t h i s testimony was designed t o suggest Carl
was an e p i l e p t i c o r , a t the very l e a s t , suffered from some unknown malady.
However, there was no expert testimony i n t h i s regard.
             I t was a l s o speculated t h a t Carl could have fractured h i s skull
on the t o i l e t bowl rim when he slipped off the s e a t and while t h e defendant
was out of his presence. Even if this is a reasonable hypothesis, Dr.
Cox testified that Carl , who weighed between 25 and 30 1bs., could not
have fallen down and fractured his skull. "   ***    the amount of force re-
quired to infl ict this injury is much greater than 30 pounds."
         It was 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, there was 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's criminal negligence in that the treatment or
disciplinary action taken by the defendant was "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 a departure from what would be the con-
duct of an ordinarily prudent or careful man under the same circumstances
as to be incompatible with a proper regard for human life, or in other
words, a disregard for human 1 ife or an indifference to consequences.I1
State v. Powell, 114 Mont. 571, 576; 138 P.2d 949.
         Defendant Is 1 ast specification of error urges that the questions
put to the court by members of the jury demonstrate that the jury was
biased and guided by passion and prejudice in arriving at their verdict.
Again, we cannot agree, The questions do not exhibit an affirmative show-
ing of prejudice on the part of any juror as is required before error
will be found. State v. Winter, 129 Mont. 207, 285 P.2d 149; State v.
Mott, 29 Mont. 292, 307, 74 P. 728. The questions referred to do not
demonstrate any preconceived prejudice toward the defendant before the
evidence was presented; rather, they are reasonable reflections of per-
plexed jurors arising out of evidence presented at trial. This does not
c o n s t i t u t e reversible e r r o r .
             For the foregoing reasons, the judgment i s affirmed.


                                                     - G - q ---- L
                                                     ciate Justice
