*270 OPINION OF THE COURT BY
This сase is before the court on Writ of Error to the Circuit Court of tbe Second Circuit.
The defendant was charged with Burglary in the First Degree under an indictment which alleged, in its pertinent portions, that defendant on “the first day of June, 1959, and in the nighttime of said day, did enter the store of another, to wit, Silversword Liquor and Variety Shop, *271 owned and operated by Dee Westbrook and Martha A. Westbrook, * * * with intent to commit larceny therein, * * * and did then and there and thereby commit the crime of burglary in the first degree.”
To this indictment, the defendant entered a plea of not guilty. After a verdict of guilty, the trial court еntered its judgment finding the defendant guilty as charged and imposed its sentence of imprisonment from which the defendant brings this Writ of Error.
The evidence showed that at about 7:00 A.M., on the morning of June 1, 1959, as Dee Westbrook drove past his liquor store in his automobile, he noticed broken glass on the ground in front of the store. Upon investigation, he discovered that two sections of the glass window display at the front of the store had been shattered and that a piece of board was lying on the ground nearby. He had checked the store the night before at about 10:30 P.M. and everything had then been in order.
Although Westbrook could not remember the particular pattern in which the liquor bottles had been arranged for display on the shelves behind the shattered glass sections of the window, he was fairly certain that the shelves had been completely filled with very little space between bottles. Surveying the damage, he noticed several spaces between the bottles on the display shelves and sensed that several were missing. He could not say for sure how many but he “could tell a number of bottles had been taken out. [He] just guessed anywhere from four to six, along there; [he] сouldn’t tell for sure.” Various bottles were later recovered which were similar to those stocked and sold in the store, although Westbrook could not identify them as being those from the store.
On June 2, 1959, a partially filled bottle of Hiram Walker’s Imperial whiskey was found by the superintendent of Olinda Prison Camp at Dormitory One. Three *272 fragments of glass resembling pieces of a liquor bottle were also discovered in a trash can near the dormitory. On June 4, 1959, an empty bottle of Teachers Highland Scotch whiskey was uncovered by a guard in a toilet tank in the dormitory. The named brands were among those carried in stock in the store. The bottles and fragments were admitted in evidence over objection.
A prison camp inmate, Donald H. Igawa, was permitted to testify, over objection, that at about 8:00 P.M., on May 31, 1959, defendant and an accomplice asked him to go with them to get liquor, but he refused. He further testified that at about 3:00 o’clock on the morning of June 1, 1959, he was awakened by defendant and that he drank whiskey with him from a bottle of Old Forester in the bathroom of the dormitory. Old Forester also was one of the brands carried in stock in Westbrook’s store.
The admissions and confessions of defendant showed that he and an accomplice had sneaked out of the dormitory in Olinda Prison Camp at about 10:00 P.M., on May 31, 1959. They stole a car, and drove around until about 2:35 A.M., on June 1, 1959, when they broke the glass sections in front of the liquor store and took five bottles of liquor. Two of these bottles then were taken by defendant and three by his accomplices. Thereafter, they returned to the prison camp and drank from a bottle of whiskey in the company of Donald H. Igawa.
In these pre-trial statements, defendant identified the piece of board found on the ground in front of the liquor store as the one used to break the glass sections, and the liquor bottles, together with the broken liquor bottle pieces, later placed in evidence, as comprising the bottles and remnants he and his accomplice had taken from the store.
Another witness established that a car had been taken from the home of a resident in Olinda sometime in the *273 early part of the morning of June 1, 1959; that the car was later found about a half mile from the prison camp; and that a smoked Pall Mall cigarette, matches, and portions of а green tax stamp used on liquor bottles were found in the car. Defendant had admitted smoking Pall Mall cigarettes on the night of the offense and that a bottle of liquor had been opened in the car.
Defendant did not testify and did not offer any evidence in his behalf. The court was asked to take judicial notice of the fact that on June 1, 1959, the sun rose at 5:49 A.M.
Defendant first contends that there was insufficient proof of the corpus delicti by evidence aliunde the purported confessions and admissions of the defendant, that the latter should not have been admitted in evidence, аnd that a verdict should have been directed for defendant. Specifically, it is contended:
“a. There is lack of proof that entry was made by someone with a felonious intent to commit larceny.
“b. There is no proof of the essential element of nighttime.”
The question as to the applicable rule in connection with the quantum of the independent proof of the corpus delicti in this jurisdiction has now been resolved by this court.
State
v.
Yoshida,
There has been no modification of the rule that a defendant cannot be convicted on his purported extrajudicial confession alone.
Republic of Hawaii
v.
Tokuji,
It also is the rule that we are not сoncerned with the state of the record at the time of admission of the evidence objected to, since the order of proof is discretionary on the part of the tidal court.
Territory
v.
Chung Nung,
The corpus delicti of any particular crime has been generally defined to mean the occurrence of the specified kind of injury or loss resulting from somebody’s criminality. 7 Wigmore,
Evidence,
3d ed., § 2072, pp. 401, 402. It simply means “the actual commission of a crime by someone.”
Territory
v.
Kinoshita,
In the specific case of burglary, the general rule is that “the corpus delicti means no more than that there was a burglarious breaking or entering of the house or building charged in the indictment.” 9 Am. Jur.,
Burglary,
§ 71, p. 276. “Burglarious” connotes an intent to steal or commit some crime.
State
v.
Gentry,
Burglary in the First Dеgree is defined by two sections of the Revised Laws of Hawaii 1955, as follows:
“§ 266-1. Defined. Whoever, by night or day, enters the dwellinghouse, room, building, store, mill, warehouse, outhouse, or vessel of another, with intent to commit larceny in either the first or second degree, or any felony, therein, is guilty of burglary.”
“§ 266-3. Degrees. Burglary is of two degrees, first and second. Burglary committed in the nighttime, or committed by one armed with a deadly weapon, or committed when any person having a right to be there is within the place burglarized, is burglary in the first degree; all other burglary is in the second degree.”
Thus, it is seen that the offense is burglary. R.L.H. 1955, § 266-1. The degreе merely reflects the gravity of the offense, as determined by the manner in which the burglary was committed. R.L.H. 1955, § 266-3.
Unquestionably, all the elements of the offense charged, here burglary in the first degree, must be proved beyond a reasonable doubt to sustain a conviction.
Territory
v.
Makaena,
Thus, we do not agree with defendant’s contention that the
Makaena
case stands for the proposition that the corpus delicti is equivalent to the essential elements of burglary in the first degree. Those details which merely increase the degree of the crime are not included in the corpus delicti. That the theft was in the nighttime is not, therefore, part of the corpus delicti of burglary in the first degree.
Cf. State
v.
McGuire,
Moreover, the independent evidence amply corroborated defendant’s own statement that the offense took place at night. As stated in
Smith
v.
United States,
It is, however, an essential element of the crime of burglary under our statute that the entry should be accompanied with an intent to steal, or to commit some felony. E.L.H. 1955, § 266-1. The intent is the gist of the offense. Without it there can be no violation of the statute. Thus, proof of the intention to steal or commit a felony is included in the corpus delicti of burglary, for it is clearly requisite to the proof of either the basic injury or of criminality. 1
In the case before us Westbrook’s testimony together with the circumstances established by other independent evidence, relate to аnd by inference prove the element of larcenous intent, and would have been sufficient for that purpose even without defendant’s pre-trial statements.
“The intent, however, may, and generally must, be proved by circumstantial evidence, for as a rule it is not susceptible of direct proof; and it has been held that the evidence of intent sufficient to support a conviction of burglary may be slight, in the absence of any evidence that the entry was made with any other intent. The existence, at the time of the breaking and entering, of an intent to commit larceny, * * * or other felony may be inferred as a fact from proof that the felony was actually com
*278
mitted or attempted after the entry; and proof of the actual commission of a felony is the best evidence of the felonious intent. * * *” 12 C.J.S.,
Burglary,
§ 55, pp. 731, 732.
Cf. State
v.
Sorenson,
This disposes of specifications of error numbered one to seven, inclusive. The remaining specifications of error concern the charge to the jury.
At the outset, we would be remiss in our duty if we failed to note the condition of the record in this case. We do so only to prevent future laxity in the preservation of recоrds of trial. proceedings. While the trial court did stamp the requests for instructions handed in by the respective parties indicating those given and those refused as well as those modified, still he failed to endorse them by signing such markings, with one exception, and in no wise did he indicate just what modifications were made, as required by § 231-20, Revised Laws of Hawaii 1955. Compliance with the statute would have saved this court considerable labor and inconvenience. The only way in which this court was enabled to ascertain in what particular a requested instruction was modified was by comparing it with thе charge given by the court. For the future it should also be pointed out that Rule 30 of the Hawaii Rules of Criminal Procedure makes substantially the same requirement of the trial judge in the settlement of instructions.
Further in this connection, no record was kept, by the clerk or court reporter, of any objections having been made by either party to the requested instructions, either in their original form or as modified. It has long been the practice in our trial courts to have the objections made by counsel to the requested instructions, either as presented or as amended, and the court’s ruling thereon, preserved *279 in the record by the court reporter as well as by the clerk of the court. It is true that exceptions were taken in this case to the giving of, as well as the refusal to give, certain instructions, including the refusal to give Defendant’s Requested Instruction No. 6, and the giving of the Court’s Instruction No. 13 (which incidentally, bears the endorsement that it was given on the court’s own motion), but the objections to this action of the trial court are nowhere recorded, either in the clerk’s minutes or in the transcript of the record. While the objections to the requеsted instructions and argument in support thereof should not be made in the presence of the jury, still a record of the proceedings had in the settlement of instructions with the objections taken, together with the grounds therefor, particularly and distinctly stated, should be preserved. Hawaii Rules of Criminal Procedure, Rule 30. It is the obligation of counsel to make proper objections and the responsibility of the trial court to see that they are properly recorded.
While the burden is on the party objecting to instructions to state distinctly the matter to which he objects and the grounds for his objections in order to preserve questions concerning instructions for review upon appeal, we are satisfied here that defendant should not be penalized for the failure of the trial court to provide the necessary means to record such objections and the grounds therefor. We are convinced that the objections now made to the refusal to give Defendant’s Requested Instruction No. 6 and to the giving of the Court’s Instruction No. 13 were the same as those advanced in the trial court, and that these objections were properly brought to the attention of the trial court. An examination of the transcript of the proceedings reflects the contention throughout of defendant that the proof of the corpus delicti was insufficient to warrant the admission into evidence, or consid *280 eration by tbe jury, of bis confession and admissions.
We now take np tbe specifications of error relating to tbe trial court’s refusal to give Defendant’s Requested Instruction No. 6 and tbe giving of tbe Court’s Instruction No. 13.
Defendant’s Requested Instruction No. 6 reads as follows:
“DEFENDANT’S INSTRUCTION NO. 6. Ladies and Gentlemen of tbe Jury, tbe defendant stands charged for tbe crime of Burglary in tbe First Degree as alleged in tbe indictment. You are further instructed that tbe corpus delicti of tbe crime as alleged in tbe indictment must be established independently of evidence which merely tends to connect tbe defendant with tbe crime charged, and independently of any asserted extra-judicial admissions or confessions of tbe party charged, and that such admissions or confessions cannot be considered as evidence of tbe corpus delicti. The term 'corpus delicti’ involves tbe elements of tbe crime, and that tbe defendant’s admission cannot be used to establish any necessary element in tbe commission of tbе crime. In this connection, tbe elements of tbe crime of Burglary in tbe First Degree are:
1. Entry into tbe store
2. In tbe nighttime
3. With intent to commit larceny
4. By someone.”
Court’s Instruction No. 13 reads as follows:
“COURT’S INSTRUCTION NO. 13. Tbe defendant stands charged for tbe crime of burglary in tbe first degree as alleged in tbe indictment. You are instructed that tbe corpus delicti of tbe crime of Burglary, that is, tbe unlawful entering of tbe store alleged to have been burglarized in tbe indictment by some person must be *281 established by evidence independent of the purported confession or admissions of the defendant. Admissions or confessions cannot be considered as evidence of the corpus delicti in the absence of such independent evidence. Once you are satisfied beyond a reasonable doubt of the establishment of the corpus delicti, however, you may use such admissions and confessions as may have been admitted into evidence, for what they are worth, in arriving at your verdict.”
Clearly, both instructions are in conflict with the rule laid down in State v. Yoshida, supra, in that they both require independent evidence establishing the corpus delicti as therein defined before consideration by the jury of the admissions or confessions of the defendant is permitted. In fairness to counsel, and the trial court, it should be pointed out that Yoshida, supra, was decided after the trial of this case.
Defendant’s Requested Instruction No. 6 moreover improperly defines the corpus delicti by enlarging it to include the element that the offense must be committed in the nighttime which, as we have seen above, is not a necessary ingredient of the corpus delicti of the crime of burglary in the first degree.
Additionally, the Court’s Instruction No. 13 taken alone without benefit of the rest of the record could be construed as improperly defining the corpus delicti of the crime of burglary by reducing it to unlawful entry or mere trespass and eliminating the essential component of a larcenous intent.
We conclude, thеrefore, that the court’s refusal to give Defendant’s Requested Instruction No. 6 was proper and that the Court’s Instruction No. 13 should not have been given.
In order to determine whether this was prejudicial error, we must consider the other instructions given, the *282 province of the jury, and the record as a whole. Complete instructions were given as to the elements of the crime, and in addition Defendant’s Instruction No. 7 was given as requested, appearing as Court’s Instruction No. 16, as follows:
“You are instructed that a naked confession, which is not corroborated by facts and circumstаnces appearing in evidence which are independent of the confessions and consistent therewith and which tend to confirm and strengthen the confession, is not sufficient to warrant the conviction of the defendant for the crime charged. Whether or not there is sufficient corroboration is a question of fact for the jury to determine.”
In considering the province of the jury it is necessary to distinguish between (1) the jury’s function in determining guilt beyond a reasonable doubt, which of course includes the question whether the corpus delicti has been proved beyond a reasonable doubt, and (2) the jury’s function, if any, in evaluating the evidence aliunde.
As to jury function (1) it is generally held that when there is direct or circumstantial evidence tending to establish the corpus delicti, the question of its sufficiency is for the jury. 53 Am. Jur., Trial, § 285, p. 240; 20 Am. Jur., Evidence, § 1230, p. 1084; 23 C.J.S., Criminal Law, § 1124, p. 620. The rule is thus expressed in 1 Wharton, Criminal Law, 12th ed., on page 474:
“It is the province of the court to decide in the first instance whether the evidence adduced of the corpus delicti is prima facie sufficient to allow evidence against the accused to go to the jury; and when the evidence of the corpus delicti has been thus established and admitted by the court, the jury must determine its sufficiency to establish the fact for which it was admitted, the samе as in regard to other facts before them. * * *”
*283
As to jury function (2), evaluation of the evidence
aliunde,
Wigmore has this to say: “Yet for the jury again the same question comes up for determination, after retiring to consider their verdict. They are bound by the rule of Evidence not to convict unless there is in their belief some evidence of the ‘corpus delicti’ to corroborate the confession. The judge’s ruling [on admissibility] was provisional only, as preliminary to allowing the case to go to the jury; and they in their turn must conclude,
without reference to the judge’s ruling,
whether the corroboration exists to satisfy them.” 7 Wigmore,
Evidence,
3d ed., p. 405. Wigmore cites Alabama and Georgia cаses. But these two are among the states requiring full independent proof of the corpus delicti. 103 U. Pa. L. Rev. 638 at 659, note 113;
Winslow
v.
State,
In this State, as decided in
Yoshida, supra,
full proof of the corpus delicti by evidence
aliunde
is not required. Manifestly, under our rule which permits proof of the corpus delicti by a corroborated confession, only the question of corroboration is for the jury while the question whether the independent evidence is sufficiently substantial to permit proof of the corpus delicti by a corroborated confession is for the court alone. We therefore adopt the rule that it is not the function of the jury to weigh the proof of the corpus delicti separately from the confession. It is the function of the jury to weigh the
*284
evidence as a whole. See
Holland
v.
State,
On the question of corroboration, Court’s Instruction No. 16, above quoted, given at the request of defendant, in view of the evidence in this case protected defendant even more than required, as appears from
Tidwell
v.
State,
Upon consideration of the rule established in
Yoshida,
we have concluded that when, by reason of incompleteness of the independent evidence, conflicts in the testimony, impeachment of witnesses, or other similar reasons, the confession is or may be a crucial part of the proof of the corpus delicti, it is within the province of the jury to determine whether the independent proof shows the confession to be trustworthy. However, we disagree with
Wheeler
v.
Commonwealth,
We have seen above that the admissions and confessions of the defendant were sufficiently corroborated by substantial evidence proving or tending to prove the corpus delicti. Therefore, there was no error in receiving the admissions and confessions. Likewise there was no error in permitting the case to go to the jury. Moreover, as seen, Court’s Instruction No. 16 was even more than defendant was entitled to. Furthermore, the jury was warranted in arriving at its verdict, and on the point where error occurred, i.e., the use of the words “unlawful entering of the store” to describe an entry with larcenous intent, the jury could not have been misled as will be seen.
It has been stated that: “An erroneous instruction, clearly prejudicial, cannot be cured by another instruction which correctly states the law, but does not call the attention of the jury to the erroneous instruction.”
Territory
v.
Kaeha,
The conflict in instructions is not head-on. This is one of the cases in which “a charge contаins references to the offense which omit an essential ingredient of it but evidently refer to statements which fully define the offense in unmistakable terms.” In such a case, as stated in
Territory
v.
Robello,
In reaching this conclusion we have considered the weight of the evidence, as is proper in determining whether or not the error is prejudicial.
Territory
v.
Awana, 28
Haw. 546;
Wilson
v.
State,
We also have considered in what connection the error occurred, that is, the error did not occur in defining the
*287
offense or its elements, all of which was taken care of properly by other parts of the charge.
Cf. Territory
v.
Cabrinha,
According to Court’s Instruction No. 16, the confession required corroboration “by facts and circumstances appearing in evidence which are independent of the confessions and consistent therewith, and which tend to confirm and strengthen the confession” otherwise it was “not sufficient to warrant the conviction of the defendant for the crime charged.” According to Court’s Instruction No. 13, the jury might use the confession and admissions “for what they are worth” upon finding only that аn unlawful entry had been perpetrated. Read as a whole, this was tantamount to an instruction that if the jury found an unlawful entry, which in view of the record could only have been understood as referring to a burglarious entry, then the jury might proceed to Court’s Instruction No. 16 and consider the confession under the instructions there given relating to corroboration. This did not prejudice defendant as he was not entitled to any instruction that any particular facts and circumstances must be shown independently.
We find no prejudicial error, and accordingly, the judgment is affirmed.
Notes
Proof of the cоmmission of a crime consists of three elements, each of which mnst be proved beyond a reasonable doubt: (1) the basic injury, such as the death in murder, the burning in arson, or the missing property in theft, (2) the fact that the basic injury was the result of a criminal, rather than a natural or accidental cause, and (3) the identification of the defendant as the perpetrator of the crime. The first two of these elements constitute the corpus delicti or body of the crime, which is proved when the prosecution has shown that a crime has been committed by someone. 7 Wigmore, Evidence, 3d ed., § 2072; see also 2 Wharton, Criminal Evidence, 11th ed., 1935, § 640.