Opinion
31532.
ARGUED SEPTEMBER 15, 1976.
DECIDED JANUARY 4, 1977. REHEARING DENIED JANUARY 27, 1977.
Murder. Baldwin Superior Court. Before Judge Duke.
D. D. Veal, Donald W. Huskins, for appellant.
Joseph H. Briley, District Attorney, Arthur K. Bolton, Attorney General, Susan V. Boleyn, for appellee.
Appellant was convicted of murdering her newly born daughter while incarcerated at the Georgia Women's Correctional Institution in Milledgeville, Georgia and sentenced to life imprisonment. We reverse.
The evidence supports the state's contention that the appellant was the mother of the newly born child found dead in the prison bathroom; the evidence is insufficient, however, to show that the infant ever achieved an independent and separate existence from its mother. "In order to convict for the murder of a newly born baby, it is incumbent upon the state to prove that the child was born alive and had an independent and separate existence from its mother, and that it was slain by the accused." Logue v. State, 198 Ga. 672 ( 32 S.E.2d 397) (1944). The pathologist who performed the autopsy on the dead child testified that the infant's lungs were filled with air, indicating that she had breathed on her own; the baby did not, however, have water in her stomach, mouth, nose or lungs; death was therefore not due to drowning. The pathologist never testified that the infant had achieved an independent and separate existence from its mother. Hence there is no proof of the corpus delicti beyond a reasonable doubt. See Montgomery v. State, 202 Ga. 678 ( 44 S.E.2d 242) (1947).
Judgment reversed. All the Justices concur.