DEFENDANT was convicted of murder in the second degree and of concealing the death of a bastard. At the time of her arrest she and her mother were residing together in an apartment house in Denver. She was unmarried and then twenty-three years old. She had lived in Denver all her life, was a high school graduate and had won, but not used, a college scholarship. Her father and mother were separated and defendant had maintained an apartment separate from her mother until about ten months prior to the crime charged.
On the morning of April 1, 1943, the husband and wife who managed the apartment house where defendant lived, started in search of the cause of a stench in the laundry room which had been noticed for some time. This led them to the locker room assigned to defendant's apartment. Having no key to the padlock, they unscrewed the hinges and so gaining entrance pulled away the piles of boxes with which the locker was filled and behind and under them found a wooden chest from which the odor seemed to come. This chest was covered with a sheet and tied with a rope "somewhat as you rope a trunk."
They carried the chest out of the locker to the laundry room where they opened it and found lying on a quilt a cardboard box fastened with strips of scotch tape. Inside the box, wrapped in cloth, was the partially decomposed body of a baby. They carried this body out of doors because of the stench, picked up the quilt underneath which they found wrapped in brown paper another package containing the body of a second baby, and beneath the quilt upon which it lay they found similarly wrapped the body of a third baby. The second and third bodies were dry and mummified.
This discovery was at once reported to the owner of *Page 210 the apartment house and to the coroner, and defendant was telephoned at the department store where she worked and asked to come home immediately as they had found something in the locker that they thought she should explain.
Defendant came promptly to the apartment house. The owner said to her, "I suppose you know what we found," and she replied, "I have nothing to say." The coroner and his deputy then questioned defendant, and she said the box was hers and that they were her babies; that they were born alive and that she put them in the box. Then an officer arrived and she told him, in the presence of the coroner, that they were born alive — one in 1941, one in 1942, and one in 1943 — and that she drowned them in the bathtub and that no one assisted her. In the afternoon defendant was questioned by the police officers and answered more in detail regarding the dates and places of birth of the three children, the circumstances of their birth, their paternity and the details as to her drowning the babies and disposing of the bodies. A stenographer made a record of the questions asked by the captain of detectives and the answers of defendant, which together constitute a full and detailed confession of the births and the drowning of the three children.
At the trial, in addition to the evidence just summarized, there was conflicting testimony of alienists and testimony of two women with whom defendant had been intimately associated in her employment, as well as that of her mother, that she had not been pregnant. Defendant herself did not testify.
Defendant urges error in her conviction, based upon six assignments which we shall consider in inverse order of their presentation in her brief:
[1] 1. Subsequent to the trial of the case and after the employment of present counsel for defendant and after two terms of court had elapsed from the date of sentence, a motion was filed in arrest of judgment and *Page 211 a supplemental motion for new trial upon the ground of alleged failure to protect the rights of defendant under paragraphs 17 and 18 of article II of the Constitution of the State of Colorado. After argument this motion was stricken by the trial court upon motion of the district attorney and such action is assigned as error. No authority is cited or argument made in support of this assignment, and from a careful study of the record we find no violation of constitutional rights.
[2] 2. Error is alleged for that the court refused a requested instruction defining voluntary and involuntary manslaughter. Our statute defines manslaughter as, "The unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever." '35 C.S.A., c. 48, § 33. Under the facts of this case there can be no basis for any instruction concerning manslaughter. Defendant was charged with the killing of the third baby, which was born on February 11, 1943. Her confession and the undisputed fact that at the time of its birth she had in her possession, hidden in the chest, the bodies of the two babies already disposed of leave no room for any possible interpretation of guilt, except as based upon deliberation. Counsel cite no authority and, as we have held since Smith v. People, 1 Colo. 121, in such case an instruction on manslaughter is not necessary.
[3, 4] 3. Error is alleged on the giving of the instruction to the jury wherein the court referred to insanity as a disease or impairment of the mind, but did not define it as including a defect of mentality, as was set out in the definition of insanity given to the jury in Arridy v. People, 103 Colo. 29, 82 P.2d 757. In the Arridy case, the major question for decision by the jury was the sufficiency of the mental capacity of the defendant to form a criminal intent. Here no such issue is involved. Defendant's mental capacity appears to be far above average; she won honors in high school and was so capable in her work as to become manager *Page 212 of the girls' department at a large Denver store. The instruction as given by the court was a stock instruction on insanity which we have approved several times; no objection to it was made in the court below and no request made for a different instruction. No error was committed in giving this instruction.
[5, 6] 4. Error is urged in the admission of evidence of other offenses. Our attention is particularly called to four objections or motions with regard to such testimony made in behalf of defendant during the trial. The first of these was a motion to strike from the evidence of the assistant deputy coroner testimony relative to any child other than the one named in the information. There had been repeated evidence as to the finding of the three bodies by other witnesses without objection and this evidence was so intermingled that it was impossible to prove the case relied upon without also bringing out the facts as to the finding of the other bodies. This motion was properly denied. The second was an objection to testimony of the city pathologist following his answer that he had occasion to examine babies' bodies brought to the morgue; that "two he just looked at externally; a third he made an autopsy on." Then the question was asked, "Describe the condition of that body," and this was objected to by defendant's counsel. There was no merit to that objection. The third was an objection to the admission of defendant's written confession, and the fourth was a motion that the confession be withdrawn and the jury instructed to disregard it, both on the ground that the confession involved three separate alleged crimes. These were without merit, under the rule that "where the confession contains a mention of another crime committed by the accused," his "allusion to it in his confession may and must be listened to if it is a part of the one entire statement confessing the crime charged at bar." Wigmore on Evidence (3d ed.), vol. VII, p. 497, § 2100 (e). *Page 213
Going beyond the specific objections made by counsel, from a careful study of all the record the only evidence to which counsel can refer as involving other crimes is that concerning the finding and condition of the bodies of the two babies other than the one upon which the prosecution was based. No attempt was made to charge or prove any criminal intent of defendant in connection with the two older bodies. In addition to the fact that this evidence was so intermingled that it was impossible to make proof regarding the finding of the one body without showing the finding of the other two, the evidence concerning the two earlier babies was admissible otherwise in proof of deliberation in the crime charged, rather than the frantic hysteria of tragedy and inexperience, and also in proof of a preconceived plan of disposing of defendant's offspring in case of pregnancy resulting from her amours. Further, it strengthens the presumption and proof of life, and the possession of the three bodies strengthens the identity of defendant in whose possession they were found as the perpetrator of the crime.
So in State v. King, 111 Kan. 140, 206 P. 883, a prosecution for murder of a victim whose skeleton was found buried in defendant's barnlot, evidence was held properly admitted of the finding on defendant's premises of the skeleton of another man who had disappeared three years earlier and of a third who had disappeared four years later and of his taking possession of the personal effects of all three victims. Many cases are reviewed in the opinion.
The record shows that defendant's trial counsel interrogated witnesses with reference to the other babies and defendant's present counsel in their argument even urge that the evidence concerning the other babies might have justified the jury in finding insanity — thus themselves admitting its relevancy for that purpose. There was no error in its admission.
[7] 5. Error is urged in that the court waited until *Page 214 its general charge to instruct as to the application of evidence of the finding of the other bodies to the purpose for which it was admitted, instead of so instructing immediately upon its admission.
In its general charge the court properly instructed the jury as to the limited purpose in which this evidence was received. No motion was made by defendant from time to time as the evidence was received that the court instruct on the application of such evidence to the purpose for which it was admitted. Generally it is advisable upon tender of such instruction by defendant to give it at the time; however, there must be some presumption of intelligence of the jury and the proper instruction given at the end of the case rather than at the time the evidence is received is not prejudicial error. Warford v. People, 43 Colo. 107,96 P. 556; Troutman v. United States (C.C.A. Colo.), 100 F.2d 628;Bold v. United States (C.C.A.), 265 Fed. 581.
[8] 6. Most seriously urged, both at the trial and now, is the contention that there was not sufficient proof of one of the essentials of the corpus delicti, to wit: that the child came to its death by other than natural causes, or that it ever lived. Proof of the corpus delicti may be by circumstantial evidence. Where defendant has confessed commission of the crime, the confession may be considered in connection with other evidence to establish the corpus delicti and it is sufficient if it is corroborated by other evidence. State v. DeHart, 242 Wis. 562,8 N.W.2d 360; Phillips v. State (Miss.), 16 So. 2d 630.
[9] "While a voluntary confession is insufficient, standing alone, to prove that a crime has been committed, it is, nevertheless, competent evidence of that fact, and may, with slight corroborative circumstances, establish the corpus delicti as well as the defendant's guilty participation." Sullivan v. State, 58 Neb. 796,79 N.W. 721.
[10] "The rule requiring corroboration of a *Page 215 confession is met if the additional evidence is sufficient to convince the jury that the crime charged is real and not imaginary." Bunch v. People, 87 Colo. 84, 285 P. 766. See, also, Short v. People, 27 Colo. 175, 60 P. 350; 7 Wigmore on Evidence (3d ed.) §§ 2070, 2071.
In many cases where confessions are relied on, they are merely oral and dependent on the uncertain accuracy of those to whom they were made. Here, the confession was made orally and subsequently repeated before a stenographer where the questions and defendant's answers were taken in shorthand, transcribed, and each page signed by defendant. Then the next morning at her request she corrected an error as to the time of birth of the first child and initialed the correction.
To convince the jury that the crime which she confessed was "real and not imaginary," we have the actual body of the child; the undisputed testimony that it was fully developed; the fact that it was carefully concealed in defendant's locker; that she had in her possession the key to the locker; that the mummified bodies of the two other babies corroborated her statement as to them; that the scissors with which she clipped the umbilical cord were found at the place she designated in her confession; that the condition of the body corroborated the statement as to the time of its birth and murder, and the striking corroboration of her statement in the confession that she stayed in bed following the birth of this child on the eleventh of February, 1943 and that she had a cold at the time, by the evidence of her friend who had been invited over to a dinner party on that day, that she found the defendant in bed, that she did not come to the table, that they visited at her bedside, and that she had a cold.
[11] Defendant had opportunity to explain under oath the many incriminating facts and circumstances presented by the state. She did not have to explain. She elected to remain silent, and while the fact that she did not testify could not be considered by the jury or *Page 216 used against her, when she declined the opportunity to explain, she may not complain because the jury drew legitimate inferences of her guilt justified by the evidence.Blanda v. People, 67 Colo. 541, 189 P. 249.
The corroborating proof, together with the confession, warranted the jury in finding the accused guilty beyond a reasonable doubt.
[12] The order of proof in the admission of a confession is discretionary with the court. Short v. People,supra; Lowe v. People, 76 Colo. 603, 234 P. 169; Commonwealthv. Lettrich, 346 Pa. 497, 31 A.2d 155; Statev. James, 96 N.J.L. 132, 114 A. 553, 16 A.L.R. 1141.
A careful and repeated reading and consideration of all the record in this case convinces us that no substantial error was committed; that defendant had a fair trial, and that the evidence was ample to justify the verdict. Accordingly, the judgment is affirmed.
MR. JUSTICE KNOUS, MR. JUSTICE HILLIARD and MR. JUSTICE ALTER dissent.