State v. Nordall
99 P. 960
Mont.
1909
Check Treatment
MR. JUSTICE SMITH

delivered the opinion of the court.

It is сontended 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 аs 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 defendаnt 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 hеr 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 considеred 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 viсtim, 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 thе 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 еstablished on the trial.” It will be observed that the court held that the corpus delicti or the existence of the *338criminal fact was directly proved in the Pepo Case. In the next sentence, however, the court inadvertently used the expression “corpus delicti” in such a way as to indicatе that all of the elements going to make up the existence of the criminal fact must be established by direct proof. The reason undoubtedly was that that was not the preсise point under consideration. For the statute does not say so. The statute says that the death of the person alleged to have been killed must be established by direct proof. And the court was in reality not unmindful of this, because it ‍‌‌‌​‌‌‌‌​‌‌‌​​‌‌‌‌​​‌​​‌​‌‌​​​​‌​​​‌‌​​​‌​‌​‌‌​‌‍quoted with approval the words of Judge Finch, as follows: “The requirement of the Code goes upon the assumption that the identity of the deceased, either by name or description, has been established in the ordinary way, and then requires that the death of that person thus identified shall be directly рroved, and the killing by the prisoner of the same person shall be shown beyond a reasonable doubt.” This court recognized the rule in State v. Calder, 23 Mont. 504, 59 Pac. 903, where Mr. Justice Pigott said: “The true meaning of thе statute in this respect is that in the proof of the corpus delicti there must be direct evidence establishing the death of a person. The fact that the decedent is the person allеged to have been killed may be proved by circumstantial evidence — that is, by inferences drawn from the facts proved — or it may, of course, be established by direct prоof. * * * The evidence was sufficient to satisfy the requirements [of the statute] that the death of the person alleged to have been killed must be established by direct proof as a fact independent of the fact of the killing by the defendant. ’ ’ And again: ‘ ‘ The corpus delicti is the body or substance of the offense. This means, and has always meant, the existence of the criminal fact. In prosecutions for murder proof of the corpus delicti involves the establishment of the fact that a murder has been committed, but includes neither the identity ‍‌‌‌​‌‌‌‌​‌‌‌​​‌‌‌‌​​‌​​‌​‌‌​​​​‌​​​‌‌​​​‌​‌​‌‌​‌‍of the person allеged to have been killed, nor the killing by the person accused.” In the Calder Case, therefore, the court, in effect, held that the fact that the person alleged to have been killed is dead is the only fact that need be proved by direct *339evidence; and to that interpretation of the statute we adhere. And in this case the only fact necessary to be proved directly was that the person alleged to have been Bertha Sehluter was dead. The fact that the dead body was that of Bertha Sehluter and the fact of the killing by the dеfendant as alleged, might be, and evidently were, in the opinion of the jury established by indirect or circumstantial evidence, which was the only kind of evidence produced on those features of the case.

The trial court, over the objection of the defendant, allowed the state to prove all of the circumstances relating to whаt 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 evidеnce. 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 alsо 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*340eral reasons above stated, and that the exhibits were sufficiently identified.

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, thе difference in temperature and atmospheric conditions would have upon the tendency of coal-oil to soak in or evaporate; and, when the artiсles 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 cоmplaint 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 expеriments 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 bеen 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 languаge 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 *341of the instructions, but mostly with reference to the contention that the felonious killing must be established by direct proof. Our attention has not been called to any reversiblе error in the instructions.

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.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.