dissenting:
I respectfully dissent to this decision. Insofar as appellant has challenged the sufficiency of the evidence, this Court is authorized to evaluate that evidence to determine whether or not the verdict is sustained. As I view the evidence, it is not sufficient.
This appellant was convicted by supposition, conjecture and unsubstantiated opinion of the State’s expert witnesses. The State in this case failed to prove the corpus delicti of the crime. The burden is on the State to prove the corpus delicti which consists of the body or substance of the crime, which ordinarily includes two elements: the act and the criminal agency of the act. Black’s Law Dictionary 413 (4th ed. 1968). In the instant case, the State proved that the child had been injured, but did not *231prove how the act was accomplished or the agency by which it was done. In other words, no evidence was offered to counter appellant’s story of how the accident occurred. 22 O.S.1981, § 886 provides:
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.
The State expert witnesses showed that the child received a skull fracture of the left occipital; that it consisted of a line fracture without any type of depression which would occur if the child had been struck by an object. In each instance, the experts stated that they did not know how the child was injured, but that it was their opinion that the injury did not result from a fall. Their testimony was premised upon what they saw and experienced in the medical circumstances, and none of them had raised any children. There seems to be little doubt that the blow was severe, but how it was accomplished was never proved. The medical experts’ testimony was based upon pure suspicion. Appellant’s story was consistent, and she continues to declare her innocence.
The State was unable to prove that this appellant ever abused any of her children. Her medical expert, Dr. Leo Lowbeer, a medical pathologist, testified that it was his opinion that the accident could have occurred from a fall as described by appellant. Dr. Moorman Prosser, a psychiatrist, testified that his examination of appellant failed to show any tendency to child abuse. All of the defense witnesses, including appellant’s husband, testified that appellant was a loving mother and that they had never seen her abuse any of her children.
The bruises were centered upon by the prosecution, but Dr. Lynn Coulter, a pediatrician, admitted that it was customary to pinch the child to gain some response, since she appeared otherwise unresponsive. Notwithstanding the fact that the child passed through several emergency personnel before reaching the hospital, Dr. Coulter could not state how many persons pinched the child in the same manner she did in an effort to gain a response. She did state that the pinch was rather strong. Whether or not the pinches were strong enough to cause a bruise the State never attempted to show. Again Dr. Lowbeer testified that the bruise marks were not uncommon in situations of this nature.
In Taylor v. State, 90 Okl.Cr. 169, 212 P.2d 164 (1949), this Court stated:
[T]he burden in a criminal case, whether for misdemeanor or felony, is on the prosecution to establish the guilt of accused, beyond a reasonable doubt, that is, to prove every essential element of the crime charged, every fact and circumstance essential to guilt of the accused, as though the whole issue rested on it.
This charge for First Degree Murder was premised upon the provisions of 21 O.S.Supp.1982, § 701.7(C), which provides: “A person commits murder in the first degree when the death of a child results from the injuring, torturing, maiming or using unreasonable force by said person upon the child pursuant to Section 843 of this Title.” Section 843 provides:
Any parent or other person who shall willfully or maliciously injure, torture, maim, or use unreasonable force upon a child under the age of eighteen (18), or who shall cause, procure or permit any of said acts to be done, shall be punished by imprisonment in the State Penitentiary not exceeding twenty (20) years, or by imprisonment in a county jail not exceeding one (1) year, or by a fine of not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00), or both such fine and imprisonment.
There was no proof, except for the conjecture and suspicion offered by the medical experts, that appellant did anything to place her under the provisions of Section 843. To the contrary, the defense witnesses testified that there was no evidence of child abuse whatsoever. This Court stated in Copling v. State, 600 P.2d 353 (Okl.Cr.1979):
*232It is true that a conviction upon circums-tatial evidence cannot be sustained unless the proof presented excludes every reasonable hypothesis except that of guilt. Tharps v. State, Okl.Cr., 555 P.2d 1054 (1976), and Roth v. State, Okl.Cr., 532 P.2d 1397 (1975). And the proof is not sufficient if it only raises a suspicion, or a mere probability of guilt.
The State’s case is riddled with suspicion, without proof of the alleged crime itself. Therefore, I respectfully dissent to this decision.