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People v. Kinzell

FEBRUARY 25, 1969.




Appeal from the Circuit Court of Winnebago County; the Hon. FRED J. KULLBERG, Judge, presiding. Affirmed.


The defendant was indicted for murder. After a jury trial a verdict was returned finding him guilty of that offense. Defendant appeals from the judgment of conviction on the verdict and the sentence to a term of 25 to 50 years.

The defendant contends that the State failed to prove the defendant guilty beyond a reasonable doubt; that the trial court committed reversible error in not interrupting the jury's deliberation; and that the court committed reversible error in the giving of a certain instruction.

Georgia Jerry testified for the State that on the date of the offense, August 20th, 1967, she was twenty-one years old and lived with the thirty-seven-year-old defendant in a two-room bungalow in South Beloit, Illinois. She and the defendant were unmarried. Her two children, Michial, age 8 months, the deceased, and La Donna, age 2 years, resided with them. Some time before 10:00 a.m. she went to the market for cigarettes. At the time she left the house, Michial was in an infant seat in the living room sitting on the floor. Mrs. Jerry was out of the house for fifteen minutes and upon her return the child was not crying. When she returned, she placed Michial on an adult double bed in the bedroom and she and the defendant had coffee in the other room; that roughly about 9:00 a.m. she heard a thump and went in and found Michial lying on the floor on his back beside the bed. Michial's mother picked him up, he was crying; she rubbed the back of his head and found just a small red mark, but saw no soft spots. She brought Michial into the other room to give him his bottle. He was crying and would not take the bottle, so she gave him a few light swats on the seat, which made him cry more.

The defendant took the baby from his mother and said that if he was going to keep crying he would give him something to cry about, and he sat him down on the davenport. The defendant then took some warm water in a glass and threw it in Michial's face. Michial cried a lot harder and the defendant got some more water and threw it on his face. The defendant picked up Michial and gave him a few light swats. Michial's mother put him in a tub of water to calm him, but he screamed louder and she took him out and changed him. The defendant then took Michial and placed him facing the davenport with his arms upon the cushion. Michial kept crying and he fell once to his seat and then on his back and his head. The defendant picked Michial up and stood him against the davenport again. The child continued to cry.

Mrs. Jerry left about 10:00 a.m. to get some gas, with the child remaining in that same position, standing at the davenport and crying. She was gone for about fifteen or twenty minutes and upon her return the child was standing at the davenport yet, crying. The defendant said that the child wouldn't stop crying and he would get him tired enough to be exhausted and Michial would have reason to cry the next time. The defendant sat down next to Michial on the davenport and snapped his nose and tapped him lightly on the back. The child screamed louder and then fell a second time. Mrs. Jerry put a blanket on the linoleum floor so Michial wouldn't hurt himself. The child slowed down on his crying and she laid him on the davenport where he fell asleep, roughly about 1:00 or 1:30 p.m. When she laid the child down he was worn out and sobbing a little and his arms and legs were jerking some.

At approximately 2:00 p.m., Mrs. Jerry left the house to pick up children's clothing and returned at approximately 6:00 p.m. The defendant was in the house alone with the children when she left. At one time in the morning Mrs. Jerry told LaDonna to go out and play and she didn't listen to her mother. The defendant said "if you give an order, you have to make her mind" and he took LaDonna by the hand and put her outside. La Donna's mother did not see her go outside, but a few minutes later heard her crying on the front step and told her to come in.

When Mrs. Jerry returned to the house the defendant came out and said he couldn't wake up Mike and that we should get him to the hospital. She saw the child lying on the davenport, pale and limp. At that time she did not know whether he was alive or not. The defendant would not allow her to pick Michial up, saying they should get going; he wrapped the baby up in a blanket and carried him to the hospital in the car. On the way to the hospital Michial's mother asked if Mike was O.K. and the defendant said yes he is still alive like he was in a coma.

A roofer testified for the State, that he was working some fifty-five or sixty feet south of the home in which Mrs. Jerry lived; that between 10:00 a.m. and 1:10 p.m. on the day in question, he heard continuous crying from a child and violent arguments between a man and a woman. He observed, at one point during the loud argument, that the screen door flew open and a man threw the two-year-old girl off the step into the backyard.

The Coroner saw the child at the hospital about 6:20 p.m. or shortly thereafter and estimated, based upon evidence of rigor mortis, that death had occurred roughly three hours before. He testified that he observed a soft, spongy area on the right side of the child's head in the rear which was obvious to the eye and definitely palpable to touch.

The admitting nurse at the hospital also testified to having immediately observed the soft, spongy area on the right side of the head which was visible as a swelling and soft and spongy by touch.

The pathologist testified to the softening on one side of the child's head which he characterized as "quite noticeable," and to a small bruise on the right side of the neck, when he first saw the child. On examination he found a large, depressed skull fracture on the right side of the head, and testified that the softness was the product of the fracture. He testified that the softness would have been there from the beginning, immediately after the skull was fractured; that on the left side of the head, opposite the skull fracture, there was another large area of hemorrhaging, indicating a separate blow from an object with a contoured surface; that there were two smaller areas of hemorrhage, one on the forehead and one near the back of the head.

The pathologist further gave the opinion that it was unlikely that falls from a standing position could have caused either of the two major head injuries; but that a fall from the bed, as described, could account for one, but not both, of the two major injuries. He testified to the opinion that the cause of Michial's death was the resulting hemorrhage beneath the covering of the brain from the fracture. The pathologist further testified that the throwing of the glass of water in the face, the snapping of the nose, or a pat on the cheek would not have been sufficient to cause any of the injuries described.

The defendant did not testify or offer any evidence. The jury deliberated from approximately 3:45 p.m. on January 16th, 1968, until 1:00 a.m. on January ...

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