* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 735, n. 34; p. 737, n. 51; 17CJ, p. 205, n. 29; p. 242, n. 51. On use of confession in aid of other evidence to establish corpusdelicti, see annotation in 68 L.R.A. 73; 1 R.C.L. 588. The appellant, Virginia Stubbs, was convicted of the murder of an infant, and sentenced to imprisonment for life in the state penitentiary.
The principal ground relied upon for reversal is the appellant's confession to the sheriff. This case was previously before this court under the style of Walker et al. v. State,135 Miss. 422, 100 So. 9, in which case the judgment was reversed, Walker discharged, and the case remanded for a new trial as to the appellant.
The infant killed was born early in the year 1923. After its death and burial, which seems to have been kept a secret, some information circulated around the neighborhood that the child was missing, and a search was instituted. In a woodland, some three hundred yards from appellant's house, in a secluded and damp spot of earth, the grave was found. One of the witnesses who found the grave, when coming to the place, took a stick and stuck it in the loose earth until it touched a box under the ground, in which afterwards the child was found. He testified that he went to the sheriff and reported this fact; that thereafter in company with the sheriff, his deputy, and other persons, they repaired to the place, exhumed the body, and had a physician to make an examination of it; that such examination disclosed that the skull of the infant had been crushed in by a blunt instrument, *Page 770 that the skin was not broken over the wounds, and that blood had coagulated in them under the skin; and the physician testified that the child's death was the result of such blows.
The body was found and exhumed on the 27th day of March, 1923; and the testimony of the doctor was to the effect that the deceased was a normal and well-developed child of the age of fifteen or twenty days at the time of its death and that it was of mixed races.
It appears that the appellant had been arrested before the body was exhumed on the charge of being guilty of murder, and confined in jail.
After the body of the child was found, it appears that a hammer was also found buried on the premises of the appellant, and the sheriff, accompanied by a deputy, took it to the jail where appellant was confined and asked her if she had ever seen the same, and she replied that she had. According to the sheriff's statement, he said: "Virginia, this is the hammer they tell me you killed your baby with." She said: "I started to tell you all about that the other evening." The sheriff then testified that he told her if she told him anything that it would be no secret, that it would be used against her, but she could make the statement if she wanted to, and that she then said that she desired to make a statement. Thereupon the sheriff asked her: "Did you kill your baby?" She replied: "I did." The sheriff then asked her why she killed her baby, and she stated that Enoch Walker, the man she and her sister were living with at the time, stated that the baby was not his, and that he wanted her "to do away with it before he returned." She then described the manner in which she killed the infant, stating that she placed a vaseline bottle under the child's head and then lay down on it, but that this did not kill it, and she then took the hammer and struck it on the back of the head, that it did not stop breathing, and that she then struck it on the side of the head above the ear, and it did *Page 771 stop breathing, and that when Walker returned that evening he made a box and buried it.
On cross-examination, the sheriff was asked, with reference to his testimony in the former trial, if he did not fail to state in that trial that any statement the appellant made would be used against her; and he was also asked if the deputy who accompanied him did not abuse the defendant and tell her that she "just as well tell it," and that a confession had been made by Enoch Walker and her sister. The sheriff denied making any threats, or that the deputy cursed or abused the appellant, and stated that he did not and would not permit such conduct. The deputy sheriff was also introduced as a witness, and his testimony supported the testimony of the sheriff in reference to the confession, but he denied using threats or violence in connection with such confession.
Another deputy sheriff was introduced, who, subsequent to this confession, accompanied the sheriff to the jail and had an interview with the appellant in which he said he asked her was she the woman who killed the baby, and she replied that she was, that she told him the details of the circumstance of the killing, and that he used no threat or persuasion to induce such confession.
Another person, the jailer, was introduced for the defendant. He stated that he was jailer at the time the sheriff and deputy visited the appellant, and that he took them to the door of her cell; that he heard the deputy sheriff curse the appellant and tell her that they already had proof of her guilt, calling her foul names and telling her she "just as well tell it." The conversation between the sheriff and the prisoner and the deputy and the prisoner, as testified to by the jailer, without detailing it here, was sufficient, if believed, to render the statement inadmissible.
The defendant was introduced on the confession, and denied making it to the sheriff or deputy, but stated that if she did make it she was so frightened she did not *Page 772 know what she was saying, and that the deputy sheriff cursed her and called her vile names in addressing her.
The court held the confession to be free and voluntary, and admitted it in the evidence, but stated in the ruling:
"Now as to the difference in the testimony given here on the stand to-day and that given on the former hearing, I won't pass on that because that is a matter that can be referred to on cross-examination, but the direct testimony of the two officers indicates that the confession was free and voluntary and not extorted."
The defendant's theory of the case was that the child was born on the 4th day of February, 1923; that she was sick with influenza at the time the child was born, and that the child was born with it and also had chicken pox; that it died one week after its birth; that they were too poor to have a physician or buy a coffin for the child, and that Walker made the coffin; that Walker buried it in the place described; that she was unable to attend the burial and did not know how the child was buried; and that the colored cemetery was a considerable distance from her home, and that they did not have the means to have it carried and buried there.
There was other testimony for the defendant; and a number of witnesses testified in corroboration of her statement.
The case was submitted to the jury, which found her guilty as charged, fixing her punishment as life imprisonment.
It is insisted that the confession was inadmissible for two reasons: (1) That the corpus delicti was not sufficiently proven to admit the confession of the defendant; (2) that the confession was inadmissible, because it was not given freely and voluntarily, and that the defendant should therefore have been acquitted, the evidence being insufficient, apart from the confession, to convict her.
We think the evidence is sufficient to establish the corpusdelicti. Whether the defendant's version of the dates of the child's death and burial be correct or not, *Page 773 we cannot say that there is no evidence to sufficiently establish its death by unlawful means. It is argued that the doctors' testimony as to the presence of the coagulated blood is unreasonable and contrary to all human experience; that the child had been dead and buried nearly forty days in a watery, damp, muddy place in a spring run; that the body was covered with mud and water during this period of time; and that the blood, if such there had been, would have been absorbed by the water. It was buried some eighteen inches deep in the ground, and, while the water and mud covered the baby in the coffin, still it is not impossible for the blood to have coagulated beneath the skin, which was unbroken, and the crushed skull. The proof shows that, when the body was exhumed, it was in a pine box made of boards approximately one inch in thickness. While the joining of the parts of the box would permit penetration of water in it, it is improbable and practically impossible for the wounds or bruises to have been inflicted after the burial. The box was intact, and the injuries could not have been made at the time the coffin was removed from the grave, or caused by the stick used to punch into the burial mound. Taking the circumstances as disclosed by the evidence, there is no ground to believe that these bruises were made subsequent to the burial of the child, and, from all the circumstances as detailed, we think there was sufficient proof of human criminal agency in producing the death of the child.
On the second question, as to whether the confession was voluntary, we think it is a question of fact on the evidence for the trial judge to decide. There was a direct conflict in the evidence as to the admissibility of the first confession. While the cross-examination of the sheriff and the deputy tended to show that they added to their former statements on the admissibility of evidence that they cautioned the appellant that what she said to them would be used against her and would not be kept secret, still the stenographer who took the former testimony *Page 774 was not introduced to testify as to the correctness of the notes taken, nor were the notes themselves introduced in evidence as being approved as correct on the former appeal. We cannot look to the record on the former appeal to see what evidence was before the court, because when the confession in the present case was offered there was a conflict as to whether it was voluntary, and it was the appellant's duty to introduce the former evidence if she desired it overruled. After all, the trial judge is the trier of fact, whose decision will govern unless we can say that the evidence shows to our satisfaction that the confession was not free and voluntary.
Taking the evidence in the record and comparing it carefully, we think it was purely a question of fact for the decision of the trial judge, and his statement that the contradiction, or difference between the evidence could be developed on cross-examination does not show that he did not pass upon the credibility of the witnesses testifying before him. In fact, we think that he did pass upon their credibility, and the evidence of the witnesses sustaining his rulings is not so unsatisfactory or contradictory as to warrant us in overruling the trial judge upon this proposition.
We find no further error in the record which would warrant us in reversing the case. The judgment of the court below will therefore be affirmed.
Affirmed.