State v. Hemphill

The Facts

Defendant charged with second degree murder for the death of his baby daughter.  When defendant brought his baby to the pediatrician it was shown that she had been dead for 3-4 hours.  The autopsy showed there was swelling of the brain, bleeding in the skull, and bruises on the brain and hemorrhage in the lungs.  The testifying physician stated that he believed the injuries were the result of shaken baby syndrome and that “the injury typically occurs when an infant’s head is shaken violently while being held so that the skull itself is maintained within the person’s grasp and the brain is shaken inside the head.”  Defendant testified that after feeding his daughter she vomited and was not breathing and then took her to the hospital.  Defendant later testified, upon learning that the cause of death was declared as shaken baby syndrome, that he had shaken he baby three or four times because she was choking.  He testified that he did not intend to harm the child when shaking her.

Procedural History

Guilty at trial and appealed.


Malice “comprehends not only particular animosity but also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person.”

“An act that indicates a total disregard for human life is sufficient to supply the malice necessary to support the crime of second degree murder.”

“Malice does not necessarily mean an actual intent to take human life; it can be implied when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.”

The Issue

Whether the evidence presented in the facts is sufficient to support conviction, even though there was no established intent to injure.

The Holding/Reasoning

Yes.  The evidence that defendant shook the baby in the manner he did, causing the injuries he did was sufficient to show he “acted with recklessness of consequences, … though there may be no intention to injure a particular person.”  The trial court did not error.


Defendant testified that because he was scared when the baby began to throw up that the child was choking he shook her to clear the airway.  “This evidence is uncontradicted and should be taken as true.”  The issue, therefore, is “whether the defendant acted with recklessness of consequences and therefore malice.”  The evidence shows that defendant feared for the welfare of the child, which caused him to act as he did.  Moreover, the evidence shows he continued his care for the child’s wellbeing by taking her to the hospital.  Evidence shows he was “beside himself with grief” and that he personally requested an autopsy be performed.  This case presents evidence at most for conviction of involuntary manslaughter.

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