99 P. 960 | Mont. | 1909
delivered the opinion of the court.
It is contended by the appellant that there is in the record an entire absence of proof necessary to establish the corpus ■delicti. Section 8298, Rev. Codes, is relied on. It reads as follows: “No person can be convicted of murder or manslaughter unless the death of the person, alleged to have been killed, and fhe fact of the killing by the defendant as alleged, are established as independent acts; the former by direct proof and the latter beyond a reasonable doubt.” The position of counsel is thus ■stated in their brief: “The chief fact to be proved in the case at bar, and the fact upon which the case for the state rested ■entirely, was, ‘Did Bertha Sehluter come to her death by criminal means?’ If that is not proven by direct evidence, there is no case established.” The first case cited in support of this -contention is State v. Pepo, 23 Mont. 473, 59 Pac. 721. The main question considered in that case was whether the identity of the deceased must be established by direct proof. It was held that the law does not require direct proof of the identity of the victim, but only of death. The court then proceeds to say, commenting upon the opinion of Judge Finch, in People v. Palmer, 109 N. Y. 110, 4 Am. St. Rep. 423, 16 N. E. 529: “It is made clear by the learned opinion of Judge Finch that the corpus delicti means the existence of a criminal fact. That such a fact exists is directly proved when a dead body is found under circumstances such as were brought out on the trial of this case. But by requiring the corpus delicti to be established by direct proof the law does not include the identity of the murdered man, but leaves that open to indirect or circumstantial ■evidence, to be established on the trial.” It will be observed that the court held that the corpus delicti or the existence of the
The trial court, over the objection of the defendant, allowed the state to prove all of the circumstances relating to what was found in and about the ruins of the Sehluter home, including the fact that parts of five dead bodies were taken therefrom. No one of these bodies was identified by direct evidence. We find no error in the ruling of the court on this point. It was necessary to prove what was found, and all of the details connected therewith, in order to establish, by circumstantial evidence, “the fact of the killing by the defendant as alleged.” All of these facts and circumstances served to enlighten the jury and enable them to determine the ultimate question of the guilt or innocence of the defendant. This evidence, together with other evidence, tended to establish the identity of one of the bodies as that of Bertha Sehluter. The family consisted of five persons, and the bodies of five persons were found in the ruins. No one was missing.
What is said above applies equally as well to the testimony of witnesses as to the color of the hair of Martha Sehluter, the eldest daughter, and the fact that the hair found on the defendant’s overshoe was the same color. It also served to show that the defendant was at a place where he could get hair of that color onto his clothing.
It is also claimed that the court erred in admitting in evidence the bones of the dog, for two reasons: (1) That they were not sufficiently identified as being the bones of the Sehluter dog, or as being the same bones taken from the ruins; and (2) as immaterial. We think the evidence was material, for the gen
Certain witnesses, on the part of the defendant, testified to experiments made by them by pouring coal-oil on overalls and overshoes at the time of the trial in June. No attempt was made to show what effect, if any, the difference in temperature and atmospheric conditions would have upon the tendency of coal-oil to soak in or evaporate; and, when the articles with which the experiment was made were offered in evidence, the court rejected them, with the remark that without such additional showing the experiment was worthless. Afterward the court offered to allow the articles to go in evidence, provided defendant’s counsel would put the analytical chemist on the stand “to testify to the effect of temperature on evaporation, in order that the jury may understand the probable or proximate effect of the different conditions existing at the time of the Schluter fire and at the time of the experiment.” Counsel declined to do this. As a matter of fact, the defendant’s witnesses fully 'stated to the jury the result of their experiments, and the complaint made is that the articles were not admitted in evidence, and the court stated that without additional testimony the experiment was worthless. We have carefully considered this assignment of error, and conclude that the court, under the circumstances, committed no prejudicial error, either in rejecting the exhibits, or in its remark. The experiments were not conducted under substantially the same conditions as had previously i existed, and, as the very gist of them was to show what amount of oil would evaporate or soak in, the matter of temperature was vitally important. This is a matter of common knowledge.
The court instructed the jury that the death of the person alleged to have been killed must have been established by direct proof, and also gave the usual instructions relating to circumstantial evidence and reasonable doubt. The jury was told, in the language of the statute, that the fact of the killing by the defendant as alleged must be established to their satisfaction beyond a reasonable doubt. Some general criticisms are made
An examination of the entire record satisfies us that the evidence is sufficient to warrant and support the verdict, and that the defendant had a fair and impartial trial.
The order and judgment are affirmed.
Affirmed.