(dissenting):
The majority’s reliance upon the normal relationship between a parent and child is so completely misapplied in this case as to be shocking. Wharton,1 the principal authority cited by the majority, expressly states that death resulting from a beating administered by a parent is murder or manslaughter “according to the circumstances of the case.” The body of this five-year-old child is so battered and beaten that it shrieks of an intent to kill or inflict grievous bodily harm. Death resulting from an act accompanied by either intent is murder. But my brothers are strangely silent as to the intent to inflict grievous bodily harm.
The instrument used, a reinforced rubber hose, and the number of fatal wounds on the body of the young and defenseless victim compel the conclusion that the person who inflicted the wounds intended to either kill or inflict grievous bodily harm. However, we must, say my brothers, shut our eyes to these circumstances and close our minds to the compellingly logical conclusion because the one who battered the child to death is her adopted father. The figure of Justice is portrayed with a blindfold, but the symbol stands for impartiality to the parties, not the loss of eyesight. I cannot be so blind or so unthinking as to allow the parent-child relationship to obscure the nature of the wounds suffered by the child, and the means by which those wounds were caused. As a matter of fact, I contend that the relationship imposes a special responsibility upon the parent to guard the child against harm, whether it be by an act of another or by his own hand. Of course, we may presume that a parent would not willingly cause the death of his child, but that presumption, like any other presumption, yields to the actual facts. The facts here overwhelmingly rebut the presumption.
The kind of beating ’administered this little girl completely and irrefutably excludes any possibility she was killed as a result of culpable negligence resulting from an indifferent and casual excess of parental discipline. Consequently, the only circumstance that indicates the existence of manslaughter rather than murder is that she was killed in the “heat of sudden passion” on adequate provocation. Yet the record is bare of evidence of the existence of any such emotion and provocation. Not a trace of the existence of such passion in the accused appears in his pretrial admissions that he beat the child. And certainly there is no trace of it in the accused’s testimony at the trial, because he tried to saddle the responsibility for the crime on his wife. What of the wife’s testimony that she beat the child but did not know “where or how hard [she] hit her?” Her recital of her purported chastisement because the child wet her pants and failed to get a hairbrush shows the exact opposite of passion and provocation; it reveals a calm and collected purpose to “discipline the child and make [a] good child of her.” Manslaughter, therefore, is simply not in issue as a possible alternative to the offense charged. In my opinion, the law officer was entirely correct in not instructing on that offense.
I would affirm the decision of the board of review.
Wharton, The Law of Homicide, 3d ed, §472.