United States v. Houghton

Opinion of the Court Quinn, Chief Judge: Marcella Houghton, twenty-two months of age, was killed by her father. He was tried and convicted on a charge of unpremeditated murder and sentenced to dishonorable discharge, confinement at hard labor for twenty-five years, and auxiliary penalties. A board of review affirmed the conviction, but reduced the period of confinement to twenty years. The accused contends his conviction should be reversed because of two alleged prejudicial errors in the law officer’s instructions. The first assignment of error is concerned with the following instruction by the law officer: “You are advised as a matter of law that an accused is criminally responsible for homicide if his unlawful act contributed to or accelerated the death of the victim.” The accused contends “no issue was raised to warrant any such instruction.” To put the assignment of error in proper perspective, we set out briefly some of the evidence and the proceedings at trial. At about 4:00 a. m., on August 14, 1960, Mrs. Houghton appeared at the apartment of her upstairs neighbors, Sergeant and Mrs. Kirkland. She was carrying the battered body of Marcella. Both the sergeant and his wife tried to find a pulse beat in the child, but could not. The sergeant directed his spouse to call an ambulance and began mouth to mouth artificial respiration. When the ambulance failed to appear, Sergeant Kirkland had his wife drive Mrs. Houghton, the child, and himself to the hospital. En route, he continued the artificial respiration procedure, but on their arrival at the hospital the child was pronounced dead. In a pretrial statement, the accused admitted he struck the child on the back with a belt; and that during dinner on the evening before her demise, he kicked her in the back with sufficient force to propel her about three feet from him, and to cause her to fall on the concrete tile floor of the apartment in which they lived. However, the child’s body bore a great many bruises on the front and back which several doctors testified were traumatic in nature and of about the same “age.” The appearance of the inj'uries as revealed by photographs in evidence cannot properly be described in words. There was an “extensive” bruise or wound on the left check; there was loose skin around the left ear, on the chest, and on several places on the back; there were great bruises on the arms and legs; there was a large bruise or wound on the right cheek and another on the right forehead. An autopsy indicated death resulted from cerebral hematoma, or blood clot, secondary to hematoma’ of the forehead. By hypothetical questions addressed to medical witnesses for the prosecution, defense counsel elicited testimony to the effect that the bruise on the forehead could have been caused by a fall from the bed to the floor. In his closing argu [5] ment to the court-martial, defense counsel proposed a hypothesis “more reasonable than any hypothesis of guilt.” He postulated that the accused kicked the child about 9:00 o’clock in the evening; that the accused then went to work and the child was, thereafter, put to bed by her mother; later she fell out of bed “several times” hitting her head on each occasion. “Is it not reasonable,” he asked, “that the fall from the bed actually caused the subdural hematoma?” Apparently, the defense hypothetical questions and hypothesis were predicated upon a comment in the accused’s pretrial statement. He said that while at work he received a telephone call and was asked to go to the hospital. He went there. He found his wife; she was sobbing. Asked what was wrong, she replied that Marcella “wouldn’t stop crying when I put her in her crib so I’d put her back and she’d fall on the floor I don’t know how many times.” In the statement, the accused also said that before he left for work he saw “bumps” on the child’s head which his wife attempted “to reduce with cold packs”; there were other bruises on both sides of the child’s face; on her back, in the area where he had kicked her, was “a mark”; and there were “other bruise spots on her body.” There was no explanation in the statement as to how the child acquired the injuries other than the kick “mark.” Finally, the accused said that when he saw Marcella’s body, he asked Dr. Akers, the medical officer of the day, “what the two raw places on her chest were.” The question implies these injuries were not on the child’s body when the accused saw her before he left the apartment. In an out-of-court hearing defense counsel requested the law officer to instruct the court-martial that it must be satisfied beyond a reasonable doubt that the accused’s acts were “the sole proximate cause of the subdural hema-toma which eventually led to the victim’s death.” (Emphasis supplied.) The law officer denied the request and gave, instead, the contributory cause instruction set out at the beginning of the opinion. Criminal responsibility for a homicide exists only if the accused’s act directly causes death or contributes to death. United States v Schreiber, 5 USCMA 602, 607, 18 CMR 226; 40 CJS, Homicide, § lid, pages 855, 856. When the act charged is a contributing cause of death it may, in point of time, either precede the infliction of other injuries or come after them. 40 CJS, Homicide, § 9e(3), page 850; Hicks v State, 213 Ind 277, 11 NE 2d 171, cert den 304 US 564, 82 L ed 1531. Consequently, as a general statement of the rule of criminal liability for a homicide the instruction in issue is correct. It called specific attention to the fact that the accused could be convicted only if his acts contributed beyond a reasonable doubt to Marcella’s death. The instruction came after instructions on the elements of the offense charged and those of the lesser included offenses in which the law officer spelled out liability on the basis of death resulting directly from the accused’s acts. Thus, the challenged instruction merely presented the second basis for liability to complete the statement of the general rule. However, the accused contends there is no evidence to support liability on the theory the accused’s acts contributed to, rather than directly caused, death; and, as a result, the court-martial might have based its finding on “a theory not presented by the evidence.” If there was no evidence of any injuries but those inflicted by the accused, it would hardly seem likely that the court-martial would be misled by the instruction to the accused’s prejudice. United States v Jenkins, 1 USCMA 329, 3 CMR 63. Be that as it may, in his pretrial statement the accused very specifically contended that the child suffered serious injuries which were not caused by him. The board of review noted that both the defense and the prosecution accepted as competent evidence the wife’s hearsay statement that the child fell out of her crib “many times.” Whether the defense use of this statement at trial justifies appellate consideration of it for the purpose of determining whether the instruction was proper, need not detain us. There is a great deal of other evidence of injuries to support the appropriateness of the instruction. Two sep- [6] arate remarks íii tbe accused’s pretrial statement show the presence of other injuries for which the accused at least inferentially denied responsibility. In the first, he said that before he left the apartment for work he noticed bruises on both sides of the child’s face and bumps on her head which his wife attempted to reduce with cold packs. His silence as to how Marcella sustained these injuries implies, in the context of his statement, that he did not inflict them. The second comment is the reference to the two “raw places” (actually areas of torn skin) on the child’s chest when he viewed her body in the hospital emergency room. Here again, the statement leaves the inference that the accused had nothing to do with this injury. These statements and defense counsel’s closing argument hypothesis provide ample justification for the law officer’s contributing cause of homicide instruction. Obliquely, appellate defense counsel attack the “phraseology” of the instruction. They contend that even if appropriate, the words, “as a matter of law,” took from the court-martial the factual question whether the acts charged to the accused contributed to the child’s death. The contention reads too much into the passage and gives too little attention to other parts of the instructions. The court-martial was not told the accused was responsible because his act contributed as a matter of law to the child’s death. They were merely advised that if his acts contributed to her death, then he was liable. Whether the accused’s actions did in fact contribute to Marcella’s death was left entirely to the court-martial. The degree of proof required to establish guilt was spelled out in meticulous detail. We conclude, therefore, there is no error in this instruction. Turning to another part of the instructions, the accused contends he was prejudiced by the following advice: “The court is further advised that the killing of a human being is unlawful when done without justification or excuse. A person is presumed to have intended the natural and probable consequences of an act purposely done by him. Hence, if a person does an intentional act likely to result in death or great bodily harm, he may be presumed to have intended death or great bodily harm.” In United States v Ball, 8 USCMA 25, 30, 23 CMR 249, we noted that the word “presumption” is “the slipperiest member of the family of legal terms.” It may be understood as indicating merely a “justifiable inference” or as describing a “presumption [or rule]” of law. The particular sense in which the word is used often depends upon a reading of the entire passage in which it is used. To say that “a person is presumed to have intended the natural and probable consequences of an act purposely done by him” ordinarily indicates only that it may be inferred he intended the consequences of his act. See United States v Jones, 10 USCMA 122, 126, 27 CMR 196; United States v Miller, 8 USCMA 33, 37, 38, 23 CMR 257; Rosenbloom v United States, 259 F2d 500, 503, 504 (CA 8th Cir) (1958). There may perhaps be occasions when the quoted words are misleading. This is not one of them. In the Boll case, supra, we said: “The word ‘presumption’ by itself is not enough to render an instruction erroneous”; if the court-martial is given “adequate tools to apply the instructions on presumptions correctly, there is no error.” The challenged instruction is not the only one on the subject. In addition, the law officer advised the court-martial as follows: “Intent ordinarily cannot be proved by direct evidence unless, for exam-, pie, the accused has been overheard to make a statement of his intent. You are advised, however, that intent may be proved by circumstantial evidence, that is, by facts and circumstances from which, alone or in connection with other facts, you may, according to the common experience of mankind, reasonably infer the existence of an intent. Thus, you might be justified in inferring that a person must have intended the natural and probable consequence of any act purposely done by him. The weight, if [7] any, to be given an inference of the accused’s intent must of course depend upon the circumstances attending the proved facts which give rise to the inference, as well as all the other evidence in the case. It is for you to make the final determination.” The test of the correctness of the instructions is not, in the words of Government counsel, “sequence but substance.” We must look to the “four corners of the instructions.” United States v Miller, supra. Here, the two instructions together “rendered impossible any harmful conclusion” that could be drawn by use of the word “presumed.” United States v Ball, supra; United States v Miller, supra. The decision of the board of review is affirmed. Judge Kilday concurs.