delivered the opinion of the court.
The appellant was convicted of murder and sentenced to be hanged. The evidence introduced on the trial was not made a part of the record, and consequently does not appear thеrein.
The assignments of error complain (1) of the refusal of the court to grant an instruction requested by the аppellant; and (2) of the modification of one of appellant’s requested instructions.
The instruction refused reads as follows:
“The court instruсts the jury for the defendant that the burden of proof is upon the state at all stages of this case which includеs proof that E. W. Cook was murdered and to establish this as one of the evidences of guilt before they can consider any evidence offered in the way of a confession and if you fail to find that he was so murderеd, it is your duty to acquit. In other words, the burden of proof is upon the state in this cause to prove that Mr. Cook wаs murdered independently of any statement of the defendant.”
This instruction was intended to direct the jury not to consider the evidence of a confession unless and un *581 til they should find aliunde the confession that the person аlleged to have been killed was murdered. There are two defects therein: (1) It erroneously defines the term “corpus delicti” in a murder case and (2) it is not true that the jury is always precluded from considering a confession when determining whether the corpus delicti has been established.
In a homicide case, the corрus delicti is: “1st. The fact of the death of the deceased; and 2d. The fact of the existence of criminal agency as the cause of the death.” Pitts v. State,
It is true that the corpus delicti must be proved aliunde an extra judiсial confession of the commission of the crime charged; but it is not true that under no state of the evidence may the jury consider a confession in determining whether or not the evidence aliunde thereof is sufficiеnt to establish the corpus delicti. Beginning with Heard v. State,
The instruction said to have been modified reads, as it appears in the record, as follows:
“The court instructs the jury for the defendant that if they do not believe from the evidence or want of еvidence or have a. reasonable doubt as to the confessions *582 being made free and voluntary оn tbe part of tbe defendant and that the same were coerced by fear, intimidation or force, then it is the duty of the jury to refuse to consider such confessions c»d any other eonfcoaion mndoahei41y-fh-ereaffe¥- while such fear or intimidation was in operation upon the mind of the defendant and to acquit the defendant.
“Given and filed as modified Oct. 19, 1936.”
It does not appear from the record that the line through the words intended to be erased thereby was drawn by the trial judge, and for aught that appears it may have been in the instruction when presentеd to him; and, if this is true, there was, of course, no modification thereof. Assuming for the purpose of the argument that these words were erased from the instruction by the trial judge, no error was thereby committed, for the instruction, аs requested, should have been refused. Louisville, N. O.
&
T. R. Co. v. Suddoth,
Finally, an error committed by a trial judge in the granting and refusing of instructions does not warrant *583 the reversal of the judgment rendered, unless it appears that the appellant was prejudiced thereby; and, without the evidence on which the instructions were based, it is impossible for the cоurt to determine this question. For aught that we may know, there may have been no evidence of confessiоns' made by the appellant, or if there was, the evidence aliunde thereof may have clearly-disclosed the existence of the corpus delicti; and, if there was evidence of subsequent confessiоns, it may also have clearly appeared therefrom that the illegal cause which induced the first, if such there was, had ceased to influence the appellant.
The judgment of the court below will be affirmed, and the sentence will be executed on Thursday, April 29,1937.
So ordered.