Thе appellant, James Lewis, and his wife, Mary Lewis, were jointly indicted for murdering their ten and-a-half month-old daughter, Joann, “by malnutrition and physical abuse.” They were tried separately, with the mother being found guilty of murder (see
Lewis v. State,
The child was bоrn prematurely, with a twin sister. She weighed only three pounds, seven ounces at birth and only eight and-a-half pounds at death. There was expert testimony that the child’s premature birth, combined with a condition known as respiratory distress, caused her to be extremely vulnerable to other complications and diseases, thus hindering normal development. According to a medical examiner from the State Crime Laboratory who performed the autopsy, the cause of death was “pneumonia associated with malnutritiоn and child abuse.”
With reference to his finding that abuse had contributed to the child’s death, the medical examiner testified that he had observed, among other things, “a pressure type laceration and abrasion across the lower lip that tells me that something has been bound around the lip and chin area of the child that has continued to rub and an abrasion that is extremely deep within the epidermis of the child.” Elaborating, he stated, “I’m talking about cutting almost through the skin of the lip. Something has been bound around that child’s chin that’s caused this pressure and abrasion on the child.”
The appellant and his wife were taken into custody on June 2, 1984, the day of the baby’s death, and were formally charged with murder the following day. On June 6, 1984, a GBI agent obtained a warrant for the search of their residence, based, in part, on statements made to him by the couple’s nine-year-old daughter to the еffect that she had witnessed the mother bind the deceased infant with belts, tape her eyes and mouth shut, and administer whippings to her with a belt. Execution of the search warrant resulted in the seizure of several belts and a strip of black electrical tape from the couple’s *370 home. Held:
1. The appellant enumerates as error the denial of his motion to suppress the evidence seized during the search of his residence, contending that probable cause was not established to support the issuance of the sеarch warrant. Because the Supreme Court, in affirming the mother’s conviction, has previously upheld the validity of the search (see
Lewis v. State,
supra,
2. The appellant enumerates as error the admission into evidence of 14 pre-autopsy photographs and one post-autopsy photograph оf the child’s body, contending that these exhibits were unnecessarily repetitious, gruesome, and inflammatory.
The pre-autopsy photographs were clearly relevant аnd admissible to show both the extent of the injuries and the extent of the neglect and malnutrition from which the child had suffered. “A photograph which shows mutilation of a victim resulting from the crime against him may, however gruesome, have relevance to the trial of his alleged assailant.”
Brown v. State,
Thе post-autopsy photograph was offered to establish that certain forces which had caused bruises to the infant’s scalp had also resulted in bruises to its skull. Although the statе’s own expert testified that these injuries indicated only “minor type forces hitting the top of the head, and it could be that the head is either hit against the wall or hit against the crib оr something of that nature,” the photograph nevertheless conveyed additional, relevant information concerning the nature and extent of the child’s injuries which was not observable from the pre-autopsy photographs. Consequently, we hold that it was admissible under the rule set forth in
Brown v. State,
supra,
Although the appellant did not make such an argument at trial, he contends on appeal that the autopsy photograph was additionally objectionable because of the placement of a baby bottle adjaсent to the infant’s lips. As this argument was not made at trial, the state was not called upon at that time to offer an explanation for the presence of this object, nоr has the state ventured an explanation on appeal. Whatever its purpose, however, we hold that it did not render the otherwise relevant and admissible photograph so unduly inflammatory and prejudicial as to entitle the appellant to a new trial. The appellant’s second and third enumerations of error are without merit.
*371 3. In three separate enumerations of error, the appellant contends that the trial court did not give proper and adequate instructions on the elements of thе offense of involuntary manslaughter. The charge given by the court was as follows: “[I]f you find that the death of the child occurred as a result of negligent omission of [the appellant], then this negligent omission would be involuntary manslaughter by an unlawful act.”
The appellant’s initial objection to this charge is that it failed to convey the requirements, as set forth in
Paulhill v. State,
The court’s charge that the requirement of criminal intent could be satisfied by a showing of criminal negligence on the part of the appellant was clearly a corrеct statement of the law. See
Smith v. State,
The appellant contends that the charge was further defective in that the court did nоt instruct on involuntary manslaughter in the commission of a lawful act in an unlawful manner, which is a misdemeanor (see OCGA § 16-5-3 (b)), but instructed only on involuntary manslaughter in the commission of an unlawful act, whiсh is a felony (see OCGA § 16-5-3 (a)). We can, however, conceive of no reasonable view of the evidence which would have authorized a finding that the death resulted from the commission of a lawful act. The appellant’s assertion that such a finding would have been authorized under “the theory of feeding the child, but in an improper manner,” (i.e., in such а manner as not to permit the child to continue living), can most charitably be characterized as ludicrous.
Generally speaking, “[i]t is the joint and several duty of each par
*372
ent to provide for the maintenance, protection, and education of his child until the child reaches the age of majority . . .” OCGA § 19-7-2. The Supreme Court has held that the death of a child resulting from a negligent omission to comply with this duty “would amount to involuntary manslaughter by the commission of an unlawful act.”
Estes v.
State,
4. The appellant contends that the trial court erred in refusing to give his requested charge that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shаll exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Even assuming arguendo that such a charge was required under the circumstancеs of this case, the transcript reveals that one was in fact given. Consequently, this enumeration of error is also without merit.
5. The evidence presented was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of involuntary manslaughter in the commission of an unlawful act. See generally OCGA § 16-5-3 (a);
Jackson v. Virginia,
Judgment affirmed.