*1 272 weight did capital
answer not add critical to the out of witnesses’ refusals to testi- 9 prosecution’s subject fy. a form not . . .
cross-examination.6 judgment af-
Defendant firmed. invokes the stated in States,7
Namet v. United may that “error concept based prosecutorial TUCKETT, HENRIOD, ELLETT and misconduct, when the Government makes CROCKETT, JJ,, concur. flagrant
a conscious and attempt to build
its case out of arising from use privilege.” However, testimonial
the court further observed that reversible invariably
error in not when
ever a
privilege
witness claims his
self-incrimination, and the
must look
courts
We cannot find these few
when entire viewed in context of the
trial, planned amounted or deliberate
attempts by the Government to make Douglas Alabama, 420, 415, 187, 6. 380 U.S. U.S. 1151. 373 83 S.Ct. 934, 1074, 85 S.Ct. 13 L.Ed.2d (1965). 189, 9. 373 U.S. 83 S.Ct. also see Brickey, (C.A. United States 8th 186, 1151, 179, 1970) 7. 373 U.S. S.Ct. 1154- 426 F.2d (1963). 10 L.Ed.2d *2 Huggins, Ogden, for defend-
I. Gordon ants-appellants. Gen., Romney, Atty. David
Vernon B. Evans, Attys. Young, T. S. William Asst. Gen., City, plaintiff-respon- Lake Salt for dent.
TUCKETT, Justice: were found in The defendants court below of crime of de- manslaughter. charge The their fendants arose out of minor child. Judy Bassett defendants
The September husband and wife and on gave Judy Bassett birth hospital at a daughter, Erica Jean Ogden, At times we are all here Bassett cerned with eyesight and rated as was poor from delivery industrially legally The blind. baby a breech birth and the was At the the district court no evi- family doctor was attendance at the time. dence was adduced on behalf prose- cution which showed that either of de- 8, 1970, On November Erica was taken fendants any act or omission hospital for treatment of an ailment which resulted in the baby. death of the manifested convulsions a mild fever. though Even record devoid of family physician examined the evidence which would tend to show that spinal tap performed and a at was the defendants or either one of them com- hospital and the contained fluid extracted any injury body upon the subsequent- traces blood. The child was baby, nevertheless the court submitted ly released and thereafter on November jury upon again hospital the child taken was being parents defendants of' deceased pronounced where An dead. child and responsible for the child’s autopsy performed and it was found protection imposed upon the that the child had acute died duty using ordinary reasonable chronic subdural also hematoma. safety. the child’s The court instructed had fractured ribs but not con- these did in effect if the defendants tribute to her death. *3 gross negligence of in the care complaint A charging was filed the de- of the child in such a manner as to evince fendants with the crime of wilful disregard for the consequences; and manslaughter pursuant provisions of being there no amounting 76-30-5, U.C.A.1953, Section which reads satisfactory excuse; ato if and the fatal as follows: injury care, resulted from such lack of then Manslaughter is the killing unlawful such acts or omissions were a sufficient of a human without malice. It is basis to find the guilty. defendant of two kinds: The State had the burden of Voluntary (1) .... proving beyond a reasonable that the
(2) Involuntary, in the commission of proximately death of the child resulted amounting unlawful act not part from some or act omission the of on felony, or in the commission of a lawful showing defendants. Even of a a mere death, act which produce in an thoughtless slight omission or deviation unlawful manner or without due caution prudent from the norm of in conduct is circumspection. and support sufficient finding to of criminal a preliminary a After hearing negligence. the defend- In order to make out a case ants were bound over for trial. under the statute to it above referred is manslaughter guilty of defendants were an un- to show upon the State incumbent death of the child. the which is done infraction or an act lawful safety the of disregard for in marked no direct surprising that there is is not It no evi- there In this case others.1 the baby suffered evidence as to how the part the act to show on dence this, as in injuries from which died. In them, it was either of or one usually crime, types it is com- most of not to the case the court submit error for presence in the witnesses. speculate jury to jury permit and the ascertaining only occurred means of what of the defend- upon guilt innocence or shown; is it from the circumstances ants. The unfortunate jury should borne mind that a source by her from injuries only entitled to the direct evi- consider not is insufficient the evidence not shown dence, but draw all reasonable care- a conviction. After on which to base fairly can be deduced therefrom. See we are of the record ful consideration Tryfonas, Utah 2d State must be opinion that the conviction Laub, 102 it is so reversed and ordered. P.2d 805. indisputable shown:
From the facts J., CALLISTER, and HENRIOD head; C. in the hemorrhage subdural ELLETT, JJ., ribs, concur. bruising ear; and the broken about reasonable be- ample evidence
there is severe had received lief child CROCKETT, (dissenting). Justice her death. resulted in traumatic blows which evidence, and the disagree Upon I not with the statements of the basis of that do under opinion. disagree law in the I with further fact What defendants, think application There- I is their to the evidence. control submitting fore, justified trial reversal of I dissent from the guilt or agree question the trial the defendants’ view of I with the viction. They jury. had what in the have court, was sufficient basis innocence to that there minds, to, they full and fair are entitled which reasonable evidence thereon, guilty. I would fairly reasonably could and the acting *4 affirm their conviction. beyond a reasonable believe 258; Bolsinger, Lingman, 221 Minn. 91 P.2d State v. 97 Utah Thatcher, 21 N.W.2d State v.