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People v. Ellison

FEBRUARY 24, 1970.




Appeal from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT. Mary Alice Ellison, defendant, was charged with voluntary manslaughter in one indictment and with two counts of murder in a second indictment, all of which charges alleged that she struck with her hands and killed Darlene Ellison, her two and one-half-year-old daughter. The trial court directed a verdict of not guilty on one of the two murder counts. The case went to the jury on the remaining murder count and on the voluntary manslaughter indictment. The defendant was found not guilty of murder, but was found guilty of voluntary manslaughter, and was sentenced to a term of not less than seven nor more than fifteen years in the penitentiary.

The defendant appeals from that judgment and argues that she was not proved guilty beyond a reasonable doubt inasmuch as the State's evidence was all circumstantial and "failed to exclude — the State's medical testimony, that is — that her child, who was found floating in the bathtub, drowned." Defendant also complains about the introduction at the trial of certain photographs of the deceased, the refusal of a defense instruction, and the argument of the State's Attorney.

On December 24, 1966, when the defendant and a companion, John Heard, returned from shopping they found that the defendant's three children had smeared hair grease all over themselves and her apartment walls. The defendant then gave Darlene a whipping which, under the State's theory, was the cause of the child's death inasmuch as it resulted in a cerebral edema.

On Christmas morning, when the children got up at 4:30, Darlene would not play with her toys and refused to eat until about 5:30 that afternoon. After eating she defecated on the floor, and John Heard cleaned up the floor while the defendant put the child into a tub of water. Here there is some discrepancy as to whether the defendant then left the apartment or whether she was in the apartment dancing with Heard. At any rate, the child was left alone in the bathtub for about fifteen minutes, and when Heard finally went into the bathroom he found her floating in the water. He attempted to revive her and when his efforts were unsuccessful the Fire Department was called, but the firemen also were not able to revive the child. While waiting for the Fire Department, a neighbor had also tried to administer artificial respiration, without success. In the ambulance on the way to hospital, Darlene was given oxygen, but when she arrived she was pronounced dead.

The defendant was not charged with involuntary manslaughter, nor was there a charge that she was criminally negligent in leaving a two and one-half-year-old child alone in water up to her chest when the child had shown symptoms of illness. Rather, she was charged with two counts of murder and one count of voluntary manslaughter, based on her striking the child. Consequently, the State had to prove beyond a reasonable doubt that the child died as a result of the whipping she received from her mother, the defendant, on December 24.

The two firemen who took Darlene to the hospital testified that they noticed bruises on her body when she was on the emergency table, and while it appears that some of the wounds were not new, there was testimony of fresh bruise marks, particularly on the forehead and a "raw area on the buttocks."

James W. Henry, chief pathologist of the Coroner of Cook County, who had conducted an autopsy on the deceased on December 26, was called to the stand and admitted that some abrasions were old, but that "other abrasions were recent as were the bruises over the forehead." He estimated that the recent abrasions were a day or two old, and he explained that the child's skull showed "areas of dark red, apparently recent hemorrhage"; that while the skull showed no evidence of fracture the brain revealed abnormally increased weight due to increased fluid, resulting in flattening of the folds of the brain, a condition known as edema. The doctor made the following comments: "In my opinion, the increased weight of the brain is due to a collection of fluid or edema in the brain with swelling. . . . The cause of death in my opinion was cerebral edema, swelling of the brain which caused apparently or did cause in my opinion respiratory difficulty and also probable cardiac involvement. The correlation I made with this were the contusions about the head. In other words, I feel that the cerebral edema is related to the head injuries. . . ." The doctor felt that the relatively fresh contusions and abrasions were traumatic "probably from a blunt force. By traumatic, I mean that they were inflicted in the sense of what we call trauma by direct physical injury."

The defense argues that the child's death might have resulted from drowning, and in support introduced witnesses who said they had seen a white frothy substance exuding from the child's mouth and nose, a symptom of drowning. Also introduced was the testimony of Victor Levine, a physician who had specialized in pathology and had formerly been associated with the Cook County Coroner's office. He did not perform an autopsy on the deceased, but based on a four-page set of hypothetical factors, gave the opinion that the hypothetical person referred to had died of drowning. He further said that the injuries supposed to have been found on the hypothetical person would not have been sufficient to have caused death.

In contradiction to this testimony the State's expert witness had testified that expulsion of a frothy fluid is often a terminal event not necessarily related to drowning; that the larynx and upper air passages of the child were clear of any appreciable fluid; both lungs floated in water and were of a normal weight; they revealed a minimal amount of frothy fluid, but no water, although there was air in the lungs; and there was no evidence of water in the esophagus and stomach. In the doctor's opinion "the deceased, Veronica Darlene Ellison, did not die of drowning."

The witness explained that there are two ways of drowning; the more common being that of submersion, with water being inhaled into the lungs and major air passages. He had already testified that this condition did not exist and that all indications were the death was not due to submersion drowning. The second manner, emersion drowning, occurs when a victim falls into water, particularly during cold weather, and sustains a sudden spasm of the voice box, preventing air or water from getting into the system. Death by such drowning is comparable to that of suffocation or strangulation. When asked if the presence of frothy substance was not characteristic of drowning, the doctor indicated it was not restricted to drowning cases, but could in fact be caused by placing an oxygen mask over the victim's face in an attempt to resuscitate (as was done here). He stated that if the condition were related to a case it would be drowning by submersion, and that such was not indicated in the death in question.

A conflict of opinion is involved. The jury heard and saw the expert witnesses testify; their evidence, as well as all other evidence presented was submitted to the jury for its assessment. It was the function of the jury to weigh the evidence and reach a verdict, and we do not feel that the jury's finding in this case was unreasonable. The State's evidence, if believed, proved the defendant guilty beyond a reasonable doubt, and apparently the jury believed the State's evidence.

The defendant admitted having struck the child on December 24, and Dr. Henry was of the opinion that the physical injuries sustained by the child led to her death the following day. This is not a situation which exists in some cases where even if the court had accepted the State's evidence as true, the evidence failed to prove the defendant guilty beyond a reasonable doubt. See People v. Bathurst, 116 Ill. App.2d 419, 253 N.E.2d 912. In the case before us the jury was entitled to find the defendant guilty if it found the State's evidence credible, and in spite of defendant's attempt to discredit the testimony of the State's pathologist, that testimony was sufficient to prove defendant's guilt.

The defendant cites Sturm v. Employers' Liability Assur. Corp., Ltd., 212 Ill. App. 354, in support of the proposition that it should be assumed in this case that the child drowned. At page 360 the court said: "Where a man, a few minutes after being seen apparently in good health is found under water, dead, and nothing more is known of the cause of death, the immediate conclusion arrived at is that he was drowned." This statement is sound as a general principle, but it is not applicable to the facts of the present case. Here we are not concerned with an "immediate conclusion" but rather, with the ultimate conclusion arrived at after an autopsy by a qualified physician. Furthermore, the victim in the present case cannot be said to have been in good health immediately before being found in the water. The defendant admitted striking the child, and there was testimony that the following day the child was listless, refusing to play and not eating. This being the case, we could not presume the child was well and suffering from no physical problems when she was placed in the tub of water. The Sturm case is not applicable here.

In the case before us the jury heard evidence supporting the view that the child had died as a result of a criminal agency. The jury was entitled to believe that evidence and to conclude therefrom that the child died as a result of the blows administered by her mother. The fact that the defendant offers a defense does not mean that the jury is obligated to accept that defense and reject the State's evidence. Rather, it is the jury's function to weigh the evidence adduced by both sides, and in the present case the jury heard evidence that the child had recent wounds. There was the mother's admission that she had struck the child the night before she died; and although at trial she said she had struck her three or four times, in earlier statements to the police she said she had no idea how many times she had struck her because she was "mad" at the time. In one of the statements to the police she said, "I just whipped her." ...

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