Opinion
No. 73-755
Decided June 12, 1974.
Criminal law — Murder — Corpus delicti — Necessary elements — Motion for discharge — Must be granted, when — Evidence — Charge to jury.
1. The corpus delicti, meaning the body or substance of the crime charged, in a homicide prosecution involves two elements, i. e. (1) the fact of death and (2) the existence of the criminal agency of another as the cause of death.
2. A motion for discharge of a criminal defendant, interposed at the close of the state's case, or at the close of all the evidence, must be granted where the prosecution has failed to produce evidence as to the existence of the corpus delicti.
APPEAL from the Court of Appeals for Cuyahoga County.
On February 3, 1972, the body of an 18-month-old child was found in the basement of an abandoned building in Cleveland. Police investigators, through a comparison of hospital records, identified the dead child as Kisha Manago, daughter of LaVerne Manago, appellant herein.
At that time, appellant and her other daughter resided with one Dennis Dargan.
Appellant and Dargan were jointly indicted for murder in the first degree. After Dargan testified as a prosecution witness in the trial of appellant, the prosecuting attorney entered a nolle prosequi on the indictment against Dargan.
At trial, the only evidence concerning cause of death was elicited from Dr. Charles Hirsch, a deputy county coroner, who testified that:
"* * * It is my opinion that Kisha Manago died as a result of multiple blunt impacts to the chest with multiple rib fractures and blunt impacts to the head and face with a fracture of the jawbone."
Upon cross-examination, in answer to a hypothetical question as to whether the injuries resulting in death could have been produced by a fall down a flight of steps, Dr. Hirsch testified:
"A. Injuries such as I have described and the distribution of such injuries to Kisha Manago could have been sustained in such a manner but in my opinion that's unlikely.
"Q. But they could have?
"A. It's possible, correct."
Upon redirect examination, Dr. Hirsch paraphrased his opinion as follows:
"A. As I recall I said that [an] individual's injuries of the type which I observed in this child could have been sustained by falling and tumbling down a flight of stairs, but in the whole, in the aggregate it was my opinion it was not likely this child sustained her injuries by tumbling down stairs."
Additionally, Dr. Hirsch stated his opinion that the child's injuries "could not have been sustained by a single fall onto a flat surface."
The record does not disclose any further inquiry into the cause of death.
The prosecution's case consisted mainly of testimony by Dargan. Dargan stated that early one morning appellant prepared breakfast for her two daughters and that when appellant "went in the room to get Kisha she [appellant] came out of the room with Kisha in her arms screaming that Kisha wouldn't wake up." When Dargan determined that the child was dead, both he and appellant became scared. Dargan stated that he left the home for the day, and upon his returning later that night the body of Kisha was in a suitcase. He testified that appellant asked him to remove the body from the home, and that he complied by taking the body to the abandoned building where it was ultimately discovered.
At the close of the prosecution's case, counsel for appellant moved "for a directed verdict or in the alternative for a discharge of the defendant" for the reason that "there is a failure on the part of the state of Ohio to prove there was a homicide in this particular case." The motion was overruled.
The case for the defense consisted primarily of appellant's testimony on her own behalf. Appellant related the following sequence of events: On January 19, 1972, appellant had to go to the clinic for pregnancy complications. Prior to leaving for the clinic, appellant and Dargan agreed that it would be best to take the children to a baby sitter. Appellant packed the children's clothes in a suitcase and left home. When she arrived home later that day, the suitcase and children were gone. Appellant was ill and bedridden much of the time, and on January 25 appellant asked Dargan to bring the children home. Dargan's reply was that she couldn't take care of them yet and they were thus better off with the baby sitter. On January 27 appellant inquired at the baby sitter's house about the children. She was told that the older daughter was there and asleep, but that Kisha had never been brought to her home. Appellant took the child home, and noticed that Kisha's clothes were still in the suitcase. When appellant next saw Dargan, she asked him where Kisha was. He responded that he had taken Kisha to another baby sitter. Kisha's body was discovered several days later.
At the close of all the evidence, counsel for appellant renewed the motion for a directed verdict of acquittal and discharge of the defendant. The motion was again overruled.
The court charged the jury on murder in the first and second degree, manslaughter in the first degree, and aiders and abettors pursuant to R.C. 1.17.
Counsel for appellant excepted to the charge, including an exception to the instruction on aiders and abettors because there had been no evidence to support such theory.
The court pronounced judgment on the subsequent jury verdict: "Not guilty of murder in the first degree, not guilty of murder in the second degree, but guilty of manslaughter in the first degree."
Upon appeal to the Court of Appeals, the judgment of the Court of Common Pleas was affirmed, with one judge dissenting.
The Court of Appeals concluded that "* * * it is clear that the trial court should not have charged on first and second degree murder," and that "after carefully reviewing the record, the trial court committed error in charging as to aiders and abettors," but that the "error is considered harmless error."
In arriving at their conclusion, the majority of the court attributed to Dr. Hirsch the statement that "the victim died as a result of a homicide * * *." However, the word "homicide" is absent from the transcript of Dr. Hirsch's testimony.
The cause is before this court pursuant to the allowance of a motion for leave to appeal.
Further facts are stated in the opinion.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Michael E. O'Malley, for appellee.
Mr. James R. Willis, for appellant.
Appellant urges that the trial court should have directed a verdict of acquittal because the state adduced no evidence tending to prove the requisite elements of the offense charged. Specifically, appellant argues that the record discloses no evidence that her daughter was killed. Thus, the question presented is whether the state established, either directly or circumstantially, by the requisite degree of proof that appellant's daughter was killed.
That the alleged victim was "killed" is not only a specific element of the crime charged (R.C. 2901.01) and the crime for which appellant was convicted (R.C. 2901.06), it is an essential element of the corpus delicti.
In a criminal prosecution, a plea of "not guilty" requires the state to prove all material facts relating to the crime charged, including those facts relating to the corpus delicti. State v. Nutter (1970), 22 Ohio St.2d 116. The corpus delicti, meaning the body or substance of the crime charged, in a homicide prosecution involves two elements, i. e. (1) the fact of death and (2) the existence of the criminal agency of another as the cause of death. 41 Corpus Juris Secundum 5, Homicide, Section 312(a); State v. Maranda (1916), 94 Ohio St. 364; 1 Wharton's Criminal Evidence (13 Ed. 1972), 27, Section 17.
In this case, the fact of the death was established. However, an examination of the record fails to disclose any evidence from which an inference could be drawn that the alleged victim met her death through the criminal agency of another.
The Court of Appeals apparently assumed that the deputy coroner testified that the victim died as a result of a homicide. A coroner's verdict as to the cause of death and the manner and mode in which the death occurred is entitled to much weight. R.C. 313.19. However, in this case, the deputy coroner's testimony with respect to the cause of death was limited to the physiological cause of death, with an additional elicited opinion that it was "possible" that the alleged victim met her death by falling down a flight of steps.
The testimony of Dr. Hirsch was the only evidence relating to the cause of death. In that testimony there is no suggestion that Kisha's death was a homicide. The prosecutor failed to inquire of Dr. Hirsch whether Kisha's death was a homicide, or whether the injuries sustained could have possibly been the result of the criminal agency of another. The prosecutor made no attempt to establish the corpus delicit by way of competent evidence. In paragraph four of the syllabus in State v. Farmer (1951), 156 Ohio St. 214, this court held:
In closing argument, which of course is not evidence, the prosecutor was permitted, over objection, to relate to the jury a scenario of brutal murder unsupported by the evidence.
"If the state fails to produce evidence, which should be readily available to the state, of a fact which will tend to establish an essential element of the state's case, such failure may raise a doubt with regard to the existence of such element of the state's case, where no explanation is given of such failure to produce such evidence and where only circumstantial evidence is offered to establish such element."
In light of that holding, the failure of the state to establish the corpus delicti upon direct examination of the deputy coroner raised a reasonable doubt as to the existence of the corpus delicti. That death occurred as the result of the criminal agency of another must be shown beyond a reasonable doubt. People v. Wilson (1948), 400 Ill. 461, 480, 81 N.E.2d 211; 41 Corpus Juris Secundum 15, Homicide, Section 312(d)(1). Cf. State v. Cochrane (1949), 151 Ohio St. 128.
In State v. Rosenberry (1938), 134 Ohio St. 108, this court reversed the judgment of the Court of Appeals which held that the trial court should have directed a verdict for the accused because the record disclosed no evidence of the corpus delicti. The accused had been charged with the murder of his wife. The record disclosed the following evidence: The accused had twice threatened to kill her; on the day prior to death, the accused was seen to viciously strike her; she was later seen lying on the floor, apparently unconscious, with the accused standing over her; the witness advised that a physician be called, but the accused refused; the cause of death was brain hemorrhage; the hemorrhage could have been caused by blows of the type inflicted by the accused; and counsel for defendant had conceded that the death was unnatural. Upon the basis of the record, this court concluded that the corpus delicti had been established.
Similar proof is not disclosed by the record in this case; the corpus delicti was not established in the trial of appellant; and the motion to discharge the defendant should have been granted.
Accordingly, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas, with instructions to discharge the accused.
Judgment reversed.
O'NEILL, C.J., STERN and P. BROWN, JJ., concur.
HERBERT and CORRIGAN, JJ., concur in the judgment of reversal, but would remand for a new trial.
CELEBREZZE, J., dissents.