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AUGUST 22, 1984




Terry Lester Baker and Anita Baker, husband and wife, were jointly indicted and tried in the Circuit Court of Harrison County, Honorable J. Ruble Griffin, presiding, for the murder of Christopher Darden Baker, five-week-old child of the Bakers. Terry Lester Baker was found guilty of manslaughter, and the jury was unable to agree as to Joyce Baker's guilt. The lower court sentenced Baker to seventeen (17) years in custody of the Mississippi Department of Corrections.

Baker has appealed to this Court and assigns four (4) errors in the trial below. The first three assignments of error present the same question, viz, the death of Christopher Darden Baker was excusable under Mississippi Code Annotated 97-3-17 (a) (1972), was not the result of culpable negligence which would support a conviction of manslaughter, and the verdict of the jury was against the overwhelming weight of the evidence.

 Appellant and Anita Baker were ages 18 and 16, respectively. Christopher Darden Baker was born April 11, 1981, and died May 21, 1981, at the approximate age of five (5) weeks. Anita Baker was two months pregnant at the time of marriage.

 Evidence favorable to the prosecution reflects that on the afternoon of May 20, 1981, appellant and Anita Baker went to the Outrigger Lounge in Gulfport about 5:30 p.m. They remained there until approximately 9:15 p.m., although each one left the interior of the establishment several times during that period. While at the lounge, appellant drank eight (8) cans of beer. Prior to going there, appellant had taken drugs consisting of a" Black Molly "and a" pink

 football. "

 Later in the evening and night, after the Bakers had returned home, according to appellant, he was bouncing baby Christopher on the bed and tossed him in the air, then fed the child and put him to bed. The child stopped breathing, and appellant attempted to resuscitate him without success. The Mobile Medic unit was called, the medics were unable to detect that the child was breathing, they administered emergency respiration, and transported him to the emergency room at Gulfport Memorial Hospital.

 Dr. Ronald T. Bruni was called to examine and treat the child and was able to revive the child's breathing with the aid of a resuscitator. The child improved to a slight extent, but expired at 4 a.m. Dr. Bruni testified that he saw the child about 1:45 a.m. on May 21, 1981; that the child was not able to maintain normal breathing on his own; that he was pale, had multiple bruises around the eyes and a large bruise across the left forehead; that the child was not making any movements, and had a very gray pulse that was weak and rapid; that the blood pressure was practically undetectable, and the child was in shock; that plasmonate was given to bring the child out of shock; that the respirator was adjusted and it became obvious there was something wrong with his head, which felt like a water balloon; and that he suspected the baby had sustained damage to the skull. There was swelling of the child's brain and steps were taken, including various types of medication, to reduce the brain swelling. Blood tests revealed that the child had suffered considerable blood loss. He had stabilized some, still remained in shock, and all efforts failed to prevent him from expiring.

 Dr. Bruni determined that there were skull fractures and old rib fractures, from X-rays which were taken, and he talked with appellant to ascertain a history of the injuries. Appellant volunteered that the child had struck his head on the steering wheel of their car about a week prior to being seen in the emergency room and denied that the child had lost consciousness, or had a bruise after receiving the blow. Appellant further related that he was told the child probably sustained broken ribs during the Ceasarian birth of the child. Dr. Bruni found four (4) fractured ribs and stated that, in his experience as a pediatrician, he had never seen a situation where a baby incurred four broken ribs in a section delivery. According to the doctor, he found that the entire gastro-intestinal tract of the baby showed it to be completely empty, which indicated that the baby had no food going into the gastro-intestinal tract for at least two (2) days. In his opinion, bruises on the child were received within the past

 twenty-four (24) hours.

 The doctor testified that the child never breathed on his own; that his pupils were fixed and dilated at mid-point, meaning that there was severe damage to the brain which made it impossible for the eyes to react to light. Dr. Bruni's final diagnosis was:

 Q. Doctor, I'll ask you to look at page 2 of your summary. Doctor, do you find that? Page 2?

 A. Yes, sir.

 Q. You see where it says final diagnosis?

 A. Yes, sir.

 Q. You have three possible reasons?

 A. Yes, sir.

 Q. Would you read those to me, please, doctor? Those are your determinations and your findings?

 A. Yes.

 Q. Would you read those for me, doctor, please?

 A. It says," Final Diagnosis, number one multiple skull fractures with intercerebral bleedings; number two - possible battered child syndrome; number three ...

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