Palmer v. State

³⁴³ Prescott, J., delivered the opinion of the Court. This appeal involves an unusual case, and develops out of a deplorable and distressing set of circumstances. The appellant (or defendant) now some eighteen or nineteen years of age, was convicted by the trial judge of the Circuit Court for Cecil County, sitting without a jury, of involuntary manslaughter. The theory of the state’s case is that the appellant was guilty of gross, or criminal, negligence in permitting her paramour to inflict, upon her twenty months’ old child, prolonged and brutal beatings that finally resulted in the child’s death; and that her said negligence, under the circumstances here presented, was a proximate cause of the child’s death.

The defense argues that the appellant’s conduct did not measure up to gross, or criminal, negligence; and her negligence, if any, was not a proximate cause of the death. In order to answer these opposing theories, it will be necessary to set forth below, somewhat in detail, the unpleasant and sordid facts leading up to the baby’s unfortunate decease. By the Code (1957), Article 72 A, Section 1, the father and mother of minor children are jointly and severally charged with their “support, care, nurture, welfare and education.” (Emphasis supplied.) Thus, it is seen that the appellant herein was legally charged with her minor child’s care and welfare; and we stated in Craig v. State, 220 Md. 590, 596 , 155 A. 2d 684 , that where the defendant owed to a deceased person a specific legal duty, but failed to perform the same, and death resulted to the deceased because of the non-performance of the duty, (at least under circumstances where the failure to perform constituted gross and wanton negligence) the defendant is guilty of involuntary manslaughter. It was also pointed out in that case that “gross, or criminal, negligence,” where it is used as a basis for a charge of involuntary manslaughter, has been interpreted by this Court to mean “a wanton or reckless disregard for human life.” The appellant was raised in Oxford, Pennsylvania.

According to her father, she was “prone to go wild,” beginning in her freshman year in high school, and quit school, permanently, the following year. At the age of fifteen, she became ³⁴⁴ pregnant by one Palmer, who married her in August of 1957. Theresa A. Palmer (Terry), the victim of the subject homicide, was born four months later. Palmer and the appellant separated shortly after their marriage (and were not divorced at the time of trial), and, in October, 1958, she met Edward P. McCue.

He was twenty-one years’ old and a native of Louisiana. The appellant knew that he, too, was married and was separated from his wife and a young son. Her relationship with McCue rapidly developed into something more than that of friendship. In May, 1959, he went to Louisiana, where he was soon followed by the appellant, the baby having been left with her parents.

They lived together in Louisiana and Mississippi, and, when he was unable to secure employment in the South, they returned, in the early or middle summer of 1959, and took up their residence with her parents. Her father became dissatisfied with the manner in which McCue chastised and punished little Terry. On July 31, 1959, she was not eating her dinner to suit McCue, so he “came over [to the table] and whacked her.” The blow given the child was of sufficient force to make the appellant’s father say to McCue, “wait one damn minute here” this is “the last time you are going to lay a hand on her in this house,” and then to order him from the home. This, apparently, was done in the defendant’s presence, as she testified that her parents’ disapproval of McCue’s treatment of Terry was “partly” responsible for his leaving their home in Oxford.

McCue left the next day and acquired a third-floor apartment at Cox’s apartment house in Rising Sun, Maryland, where he was joined by the appellant and her baby over the next week-end, August 7-9. The apartment house was a duplex building with an apartment on each floor of each side. The treatment of the child during the next few weeks, the last for Terry, was described by other tenants of the building and a neighbor from the house next door. Mrs. Copenhaver occupied the second-floor apartment immediately belovr the appellant’s.

Within about four days after Terry’s arrival, she became aware that the child was being severely and brutally whipped by McCue. She was greatly ³⁴⁵ disturbed by the “tormenting” and protracted nature of the whippings. McCue would order the child to hold out her hand, and then he would slap her. Then he would say, “Where’s your baby doll”?

When the child reached for it, there would be a loud slap. This would be repeated over and over again. His tone of voice was “crafty, nauseatingly, I just can’t imagine the voice he used. * * * It’s just beyond description. * * * It’s so terrible.” He would “scream at her.” “It wasn’t just the whipping by any means. It was the treatment the child went through.” One Saturday night, Mrs. Copenhaver arrived home at about 10:00 P. M. McCue was whipping the baby.

He whipped her constantly until eleven o’clock. By this time, the witness was so upset, she sent her husband to find a policeman. The appellant asked McCue to stop, but the whipping continued and he dragged “her [the baby] up and down the hall and beating and beating her, and it was just awful.” Finally, the appellant exclaimed, “My God, Eddie, you have opened up her soft spot!” McCue retorted, “You think I did that? You must be nuts.” The witness heard no more that night.

When the policeman finally arrived, he said that he could not take any “real” steps until Monday. The next morning, a Sunday, Mrs. Copenhaver heard McCue whipping the child again. She could stand it no longer. She went to the stairs and called McCue.

She asked him (in the presence of the appellant) what he was trying to do to the child, “was he trying to kill her?” He told her to mind her own business, “that he would do exactly as he pleased with her.” The witness warned him that there were things that could be done to people for mistreating children and he would be “handled.” About one hour later appellant came down to see Mrs. Copenhaver. She pleaded with the witness not to have “Eddie” arrested. The mother stated that the witness did not realize the trouble McCue would get into if he were arrested, that she loved him, and that the witness must have been imagining that the beatings were more severe than they actually were. Appellant explained that McCue was worried over some difficulty at work and was bothered by the heat.

The ³⁴⁶ witness pointed out and cautioned that that was no reason to “beat your kid to death.” The witness’s offer to speak to McCue was spurned and appellant stated she believed she could get it straightened out. On one other occasion, McCue had pushed the baby on the stairs and was “beating” her. The appellant asked him to stop and said: “Look what you have done.” Whereupon, the beating terminated. And on two other occasions when McCue was “just whipping” the infant, the witness heard the appellant say, “she’s had enough,” but McCue failed to desist, and kept on whipping little Terry for, what seemed to the witness, an “interminable time.” For two weeks, during the time that the appellant, Terry and McCue occupied the apartment, Mrs. Copenhaver, who had purchased a home, was absent from her apartment a great deal of time, doing shopping in the daytime and spending the evenings in the country because of the heat.

Mrs. Sarah Gray occupied an apartment that consisted of the first and second floors of the duplex building on the other side from the appellant. She saw Terry nearly every day, and, except for the first two or three days after her arrival, she had bruise marks on her at one place or another, including her chest and the backs of her legs. The marks were not on the “same places all the time.” On one occasion, Terry and her mother were visiting the witness’s apartment. The child, who was wearing sunglasses, raised them.

The infant’s left eye was completely closed by swelling and was as black as a man’s black suit. The right eye was also black, and was almost closed by swelling. When the witness cried out, “My God, what is wrong with that child”? the appellant replied, “I don’t know. She just gets that way.” On the evening of Friday, August 21, 1959, about 9:45 P.M., Mrs. Gray was in her bedroom.

Through her open window, which was near the open door to appellant’s apartment on the floor above, she could hear McCue “beating” the child. He was whipping the infant with something leather. It sounded like a belt. Mrs. Gray heard McCue ordering the child to “Lay down.” “Stand up.” “Turn around.” Each time he would strike the infant four or five times.

There was ³⁴⁷ not even the lapse of two minutes between commands. It just went on, “over and over and over.” The witness heard appellant exclaim “Eddie” in a frantic voice. He said, “You shut up too.” After listening through the window for approximately 20 minutes, Mrs. Gray went to Mrs. Carter’s house next door. She and Mrs. Carter stood outside and listened.

They could hear the same thing going on and on, over the sound of the radio which was playing in appellant’s apartment. Mrs. Carter corroborated Mrs. Gray as to what had occurred after Mrs. Gray came to her house, and further stated that the child was crying with the cry of a child who was “being hurt bad.” About a quarter to eleven, Mrs. Gray and Mrs. Carter roused Mrs. Cox, the landlady and occupant of the first floor apartment on the same side of the building as appellant. Mrs. Cox had not heard any noise, because her air conditioner was on. The three women stood outside under a tree.

Mrs. Cox remained about five minutes. She heard the slaps of a belt hitting flesh. Mrs. Carter and Mrs. Gray remained and heard the whipping continue until about midnight, a minimum period of some two hours and fifteen minutes. About midnight there was a thump which sounded like a body hitting against the wall or the floor.

That was the last Mrs. Gray heard from the apartment that night. Mrs. Dorothy Bienviaje moved into the third-floor apartment on the other side of the building from the appellant on Saturday, August 22nd, the day following the lashing that continued for two and a quarter hours. On the day of her arrival, she noticed that Terry had a black eye, and it was not over three days before she, too, realized that Terry was being whipped too often, too frequently. The whippings were not like spanking a child four or five times on the bottom: they just kept on and on, and had a rhythm to them that the witness could not help but notice.

She also saw the child’s eyes when they were red-rimmed from crying, and the baby’s face when it was bruised. Within the last five days of Terry’s life, McCue literally bit the child on both buttocks. This fact was not only admitted by both McCue and the appellant, but the cup-shaped marks ³⁴⁸ left by the upper and lower teeth were visible on both of the infant’s buttocks after death. McCue told appellant that he had bitten the baby because she had bitten him, and the appellant testified that she considered his conduct proper, since Terry had bitten him.

On the day of death, McCue was in the apartment all day with Terry. He began beating the child again. He stated that he “beat her with his fist, his hand and a belt.” Appellant was in and out of the apartment throughout the day. About 6:00 P.M. McCue struck the infant with a blow or blows which literally ripped the infant’s liver nearly in two and which tore the mesentery, a fatty, vascular tissue' supporting the colon by connection to the abdominal wall.

This was the culmination of his inexpiable offenses against the defenseless little child (for which he was tried, convicted and sentenced). Hemorrhaging into the peritoneal cavity ensued. The baby began vomiting. Appellant and McCue gave her some milk.

She continued vomiting. McCue suggested that appellant get Dr. Dodson. At