APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
The defendant, Richard Holland, was charged by a three count indictment with murder (Ill. Rev. Stat. 1969, ch. 38, par. 9-1) and involuntary manslaughter (Ill. Rev. Stat. 1969, ch. 38, par. 9-3). At a bench trial in the circuit court of Cook County, the court found defendant guilty of involuntary manslaughter and sentenced him to a term of two to six years in the penitentiary. The defendant appeals.
The defendant raises three issues for our consideration. (1) He contends that the prosecution failed to prove the existence of a criminal agency which caused the death of the deceased. (2) He contends that the prosecution did not prove him guilty beyond a reasonable doubt. (3) He contends that the trial court erred in admitting evidence of his prior misconduct and that the admission of such evidence was prejudicial to his right to a fair trial.
Deceased, Alison Neeley, was the step-daughter of the defendant, Richard Holland. Mrs. Holland also had two other children whose father was the defendant. At the time of Alison's death, she was two years old. The two other children were younger than Alison. The five people lived together in a single family residence at 7114 South Carpenter Street in Chicago. The defendant and his wife, the complaining witness in this case, had been married about five months previous to Alison's death.
Mrs. Holland testified that on February 24, 1970, the three children were at home taking their afternoon nap when she and her husband had a quarrel. He hit her, and she ran out of the house and went to her girl friend's residence a few houses away on Carpenter Street. She arrived at her friend's house at about 1:30 P.M. About 20 to 25 minutes later, the defendant came over to where his wife was, but she refused to talk to him directly, and they exchanged words through her friend who served as intermediary. After a brief conversation, Mrs. Holland told her husband to go home because the children were alone, and he left. Mrs. Holland watched the defendant through a window and saw him go into their house.
Mrs. Holland further testified that a short time after her husband's visit she received a telephone call from him at her friend's house. He was calling from a nearby tavern, because there was no telephone at their residence. He told her that someone had broken into the house, and all the children were unconscious. Mrs. Holland maintained that she saw her husband leave the house before she received the call.
Mrs. Holland returned to her house, and the police, who had arrived earlier in response to her husband's call, let her in. She found Alison, the deceased, in bed in her bedroom but was unable to awaken her. She noticed a small amount of blood coming from Alison's nose and mouth. Mrs. Holland also noticed Alison was not wearing the same clothes she was wearing when Mrs. Holland left the house that afternoon. Later she found the child's original clothes soaking with some other clothes in the bathtub. Cindy, the other child who was sleeping in the bedroom, was not harmed, nor was the third child who was in the house.
An ambulance took Alison to the hospital, and she died two days later. Dr. Edward Shalgos, a pathologist in the office of the Coroner of Cook County, testified that the cause of death was a cerebral concussion complicated by the presence of a not visibly compressive subdural hematoma which was related to the application of a harmful force to the back of the head. The doctor testified that a blow from an open or closed hand could have caused the injury or it could have resulted from a fall.
Mrs. Holland testified that the defendant had struck or beat the deceased on three prior occasions. Three or four months before Alison's death, Mrs. Holland noticed that Alison had a hand print on the side of her face. On another occasion, after Alison had been with her father, Mrs. Holland observed that Alison had a split lip and was bleeding from the mouth. On the third occasion, in December, 1969, Mrs. Holland saw the defendant rip a dress off Alison when she was having trouble undressing the child and saw him pull some hair out of her head. None of these incidents required a doctor's treatment.
Joseph Cominsky, a Chicago Police Officer in the evidence technician section, and Raymond Latimer, a police investigator in the Chicago Police Department, testified that upon examination of the house, they found no evidence of forcible entry. Defendant maintained to the police officers that there had been a burglary and that it had occurred through the kitchen door. Investigation revealed that both locks on the kitchen door were intact, but that the chain on the top of the kitchen door was broken. Officer Cominsky testified that at the scene he told the defendant that he did not believe there had been a burglary. On cross-examination of Officer Cominsky, defense counsel established that if the kitchen door had been open except for the chain, an external force could have accounted for the broken chain. Mrs. Holland testified that nothing was missing from the house and that there was no damage.
That having been substantially the evidence which the prosecution presented, at the close of its case the trial court directed a finding of not guilty as to counts one and two of the indictment which charged murder. The defendant offered no witnesses; and at the close of defendant's case, the court found him guilty of manslaughter.
Defendant's first contention is that the prosecution failed to establish that a criminal agency produced the death of Alison Neeley, and that therefore it failed to prove that a specific crime had been committed. Defendant claims that there were two equally possible explanations for the injury which caused Alison's death: (1) someone struck her on the head, and (2) she accidentally fell and struck her head on an object. We reject the argument that both explanations are equally possible.
• 1-3 In order to sustain the conviction, the prosecution must prove beyond a reasonable doubt that a criminal agency produced death. (People v. Manske (1948), 399 Ill. 176, 77 N.E.2d 164.) The fact of criminal agency may be shown by circumstantial evidence. (People v. Winstead (1967), 90 Ill. App.2d 167, 234 N.E.2d 175.) Dr. Shalgos testified that the injury which caused death could have been the result of an accidental fall. When viewed in connection wtih the other evidence in the case, however, this explanation becomes highly unlikely. Mrs. Holland found Alison in bed injured, and she noticed that she was wearing different clothing from that which she was wearing earlier in the afternoon. It seems highly unlikely that a two year old child could have changed her own clothes and put them into a bathtub. It also seems highly unlikely that a two year old child could sustain a severe head injury while not in bed and then crawl back into bed, where Mrs. Holland found her. Equally unlikely is the possibility that Alison ...