Appeal from the Circuit Court of Ogle County, Fifteenth
Judicial Circuit; the Hon. HELEN M. RUTKOWSKI, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
The defendant, Mrs. Patricia Gibbs, was found guilty, by a jury, of reckless conduct and sentenced to a period of one year. Motions for a new trial and probation were both denied.
On appeal she contends (1) that she was not proved guilty of the offense beyond a reasonable doubt and (2) that the sentence imposed was excessive.
On June 10, 1968, a two-count indictment was returned charging, in the first count, that on December 18, 1967, the defendant committed the offense of Cruelty to Children (Ill Rev Stats 1967, c 23, § 2368) in that she did "willfully and unnecessarily injure in health and limb Michael Patrick Strong, a male child who was under her legal control, by allowing him to fall down the basement stairs on two (2) occasions, and by inflicting or allowing to be inflicted, 18 different bruises upon the body of said Michael Patrick Strong, one bruise being the cause of the death of said Michael Patrick Strong." The second count charged the defendant with the offense of Reckless Conduct (Ill Rev Stats 1967, c 38, § 12-5) in that, on the same day, "she did endanger the bodily safety of Michael Patrick Strong by allowing him to fall down an open stairway to the basement thereby causing his death." The first count is a felony, whereas the second count is a misdemeanor.
Twenty-four witnesses testified at the trial, some of the same persons being called by both the prosecution and defense. Most of the evidence was directed toward the felony charge; however, the jury found the defendant not guilty on this charge. Much of the evidence as to the offense of reckless conduct was circumstantial and there was little conflict.
The evidence is that the defendant, aged 29 and a divorcee, was granted custody of two of her three children both daughters ages 7 and 9 years; that she remarried and resides with her present husband; that she was licensed by the Department of Children and Family Services of Illinois to receive into her home foster children; that she provided such home previously for a child and was evaluated by the Department as having provided a very good foster home; that in October, 1967, the Department placed Michael Strong, then 14 months of age, and his brother, Charles Strong, 2 months of age, in her legal control.
On the evening of December 17, 1967, defendant, along with the four children and her husband, visited the home of one of her husband's brothers and his wife (JoAnne Gibbs); that at this visit Michael seemed happy, was bounced on her brother-in-law's knee, which he enjoyed; and that there appeared to be an abrasion or "chapping" on the face of the child but that he otherwise seemed normal.
At about 8:30 a.m. on December 18, 1967, Bernice Gibbs, another sister-in-law of the defendant, and one who testified for the State and the defense, stopped at defendant's home on her way to purchase postal stamps; that Michael, clad in long pajamas, was in the high chair, eating breakfast and he looked normal; that upon her return from the post office, around 9:00 a.m., she stopped to drop off some postal stamps and saw Michael but did not notice any marks on his face and he again seemed normal; that she frequently visited the defendant's home, that the boy was happy and there existed a reciprocal love between the defendant and the boy.
At about 10:30 a.m., JoAnne Gibbs, while working at a nursing home, received a telephone call from the defendant who stated, "Come quick Mike has fallen"; that she told her employer, Mrs. Joyce, about the call and stated, "I just can't go," so Mrs. Joyce drove to the home of the defendant; that afterward, thinking of the baby, Chuckie, she called a friend to go to the home of the defendant; the friend reported back that the two children, Mrs. Joyce and the defendant had left for the hospital, so JoAnne then went to the hospital and, upon arrival, noticed the defendant driving away in Mrs. Joyce's car with the baby; she followed them to the nursing home and at that time, took the baby while the defendant returned to the hospital.
Shortly after arrival at the hospital, Michael was pronounced dead. The family physician testified that he tried to revive the boy, to no avail; that the boy had been dead anywhere from 1/2 to 3 hours; that he noticed bruises upon the body and, after undressing the youngster, he found the buttocks and scrotum area discolored due to blood hemorrhaging which could have occurred from 8 to 12 (or even 48) hours prior to death; that there were other bruises upon the body; that the scrotum bruise could have been caused by a fall downstairs, coupled with a straddling of a post at the foot of the stairs; that several days previously he had seen the child in his office but did not notice any bruises at that time; that in the many examinations of children, he had never seen a child with so many bruises upon its body; and that the buttocks-scrotum bruises could not have occurred on the morning of death.
The coroner, a licensed veterinarian, testified that he observed Michael at the hospital on the morning of the child's death; that there were numerous bruises about the body; that a certain bruise on one arm appeared to have been placed there by human teeth rather than animal teeth.
Francis Tucker, a pathologist who performed an autopsy upon Michael, took colored photographs which were transferred to slides and shown to the jury. He testified that the cause of death was subdural hemorrhage; that there were 30 or more bruises found upon the body; that the injury to the child's skull, which resulted in death, could have been caused by a fall downstairs and the head having come into contact with the cement floor; that four of the bruises (found on the right cheek, left leg, buttocks and scrotum) had occurred within 24 hours of death, but that all of the other bruises found at various parts of the body, had occurred some 48 hours prior to the child's death. On cross-examination the doctor testified that the large bruise to the scrotum area could have been caused by the child striking a post at the bottom of the stairs while his legs were apart.
Eight witnesses called by the defense testified that the defendant was a good mother, maintained a good home and never, to their knowledge, mistreated either her own children or the foster children in her custody.
The defendant's husband, called by both the State and the defense, testified that he retired about 9:00 p.m. the night before the occurrence and went to work at 5:30 a.m. the next day; that he never saw his wife deliberately inflict pain or suffering upon a child; that she was even-tempered; that Michael was a happy boy; that there was no disturbance during the night; that the basement stairway consisted of 11 steps with, he thought, posts near the bottom on each side; that a foundation post was located about two and one-half to three feet from the bottom of the stairway; that he had been told by defendant when, on an earlier occasion, Michael had ...