People v. Schneider

Opinion

KINGSLEY, Acting P. J. Defendant was charged, jointly with Gracie Ann Lyons (count I) with inflicting cruel and inhuman corporal punishment on a child, in violation of section 273d of the Penal Code, and (count II) with causing or permitting the life or limb of that child to be endangered, in violation of subdivision (1) of section 273a of the Penal Code.1 After a trial by the court, trial by jury having been duly waived, they were found [985]not guilty on count I and guilty on count II. Defendant’s motion for a new trial was denied and he was granted probation. He has appealed from the judgment (order granting probation) and from the order denying his motion for a new trial.2 We dismiss the appeal from the nonappalable order denying a new trial and reverse the judgment (order granting probation).

The child involved, a boy aged two years, is the child of codefendant Lyons. Mrs. Lyons had begun to live with defendant some months before the episode herein involved. Shortly after they began cohabitation, she discovered that he was an epileptic. On November 21, 1968, Mrs. Lyons had left her son in the same room with defendant. She heard a scream, ran into the room and discovered defendant in an epileptic seizure and that the child had been struck and knocked against a TV set. Mrs. Lyons’ sister testified to seeing bruises on the child on two earlier occasions, one set of which was explained to her by the mother as having been caused by an automobile striking the child, the other by his falling downstairs. Medical evidence was to the effect that it was unlikely that the earlier bruises, as they appeared when the child was examined on November 22d, could have been caused either by an automobile or by falling downstairs.

Defendant contends that the evidence does not support the finding of guilt. We agree.

It is admitted that the injuries inflicted on November 21st were caused by a blow struck by defendant. It is not contended that that blow (or blows) were deliberately or intentionally struck, much less that any actual intent to injure was involved. The case for the People rests on the theory that defendant (and the mother) had wilfully caused and permitted the child to be placed in a situation such that its person or health was endangered. We can see in the record before us no more than a suspicion that that was the case.

In order to sustain the prosecution theory the following elements must have concurred: (1) that defendant was an epileptic; (2) that he knew he was an epileptic; (3) that his epileptic condition was one that was likely to cause seizures of such violence that he might injure persons near to him when they occurred; (4) that defendant knew that seizures of such nature were likely; (5) that defendant allowed the child to remain alone in a room with him.