53 Wn.2d 386, THE STATE OF WASHINGTON, Appellant, v. RAYMOND GUILES, Respondent and Cross-appellant

[Nos. 34500, 34505. Department One.      Supreme Court      January 8, 1959.]

THE STATE OF WASHINGTON, Appellant, v. RAYMOND GUILES,
           Respondent and Cross-appellant.1

[1] HOMICIDE - MANSLAUGHTER - EVIDENCE - SUFFICIENCY. In a prosecution for manslaughter, held that the trial court erred in denying a motion in arrest of judgment, where there was no proof as to who inflicted the injuries from which a child died.

Appeals from orders of the superior court for Grant county, No. 1861, Hunter, J., entered October 9, 1957, granting a motion for a new trial and denying a motion for arrest of judgment, after a trial and conviction of manslaughter. Judgment reversed with direction to dismiss information.

Paul Klasen, J. O. Neal and John Calbom, for appellant.

Lewis & Earl, for respondent and cross-appellant.

FOSTER, J. -

Cross-appellant, defendant below, was convicted of manslaughter. The state appeals from an order granting a new trial and the defendant cross-appeals from the order denying his motion for arrest of judgment. Because defendant's motion in arrest of judgment must be sustained, it is unnecessary to consider the state's appeal.

[1] The proofs show that the defendant and his wife took Their twenty-one-month-old baby daughter to a movie marathon at an outdoor drive-in moving picture theater. They arrived at the theater at approximately 6:00 p. m. and remained until 4:00 a.m. The child was in normal health when the parties left home, but was dead on the following morning at 4:25. An autopsy, performed at 10:00 a. m. the same day, disclosed the cause of death to be multiple acute blunt force injuries to the left scalp. The pathologist who performed the post-mortem examination testified that the injuries were not self-inflicted.

Two other persons besides the defendant and his infant daughter were in the car during the performance. Throughout the night the adults drank bottled beer provided by

1 Reported in 333 P. (2d) 923.

[1] See 79 A. L. R. 906; 26 Am. Jur. 165.

 Jan. 1959]          STATE v. DAVIS.               387

defendant. There is, however, no proof as to who inflicted the injuries from which the child died. Reprehensible and repulsive as the conduct of the defendant is, nevertheless, it is not proof of manslaughter.

The court erred, therefore, in denying the motion in arrest of judgment.

The judgment is reversed and the information dismissed.

MALLERY, FINLEY, and OTT, JJ., concur.

HILL, C. J., concurs in the result.