Specially Concurring in the Dissent.— Charles A. Elwell was convicted of arson and appeals.
The indictment accusing the defendant of crime averred that Charles A. Elwell did “willfully and maliciously burn in the night-time a storehouse owned by C. P. Morse and S. H. Dill.”
Among the points presented by the bill of exceptions for determination, there is but one serious question, and that is: Does the record contain some proof other than the defendant’s extrajudicial confession that the crime of arson has been committed? The defendant occupied the building, charged in the indictment to have been feloniously burned, as a grocery-store and dwelling-house for himself and family, as well as for the purpose of keeping the postoffice of Jennings Lodge therein. A short time before the building was destroyed by fire E. C. Clemens, postoffice inspector, with headquarters at the postoffice building in Portland, Oregon, received an order from the auditor at Washington, D. C., “showing that there was a large balance due on the money order account at Jennings Lodge.”
On December 5th, the postal inspector made a formal investigation of the Jennings Lodge postoffice and of all its accounts and found a shortage in the money order account amounting’ to $2,260.22. In the night-time of December 26th following the investigation, the building so occupied by the defendant was entirely destroyed by fire. On the twenty-seventh day of February following the fire, H. H. Pomeroy, the chief deputy fire marshal of the State of Oregon, pursuant to his duties required by statute, made an investigation of the circumstances surrounding the burning of the storehouse at Jennings Lodge. To *297him the defendant confessed to the commission of the crime and gave his motive for its commission. He said:
“I was indebted in a certain manner to the extent of $2,260, which I was obliged to raise by December 27th and had endeavored to secure this money from two or three friends, but without success and in my desperation # # my attention was attracted to an article about a fire and that gave me the idea of burning the store, and with the insurance of $3,500 which I had on the stock of goods and $1,000 which I had carried on my household goods I expected to repay the $2,260 as well as other amounts * * .”
The evidence upon the trial established that the defendant’s personal property kept in the building was covered by three policies insuring him against loss or damage by fire in the aggregate amount of $4,500 as stated in the confession. Following the destruction of his property, he immediately made proof of loss to the insurance companies. Beading again from the confession, the defendant said:
“That at about 8 o’clock p. m. of December 26, 1919, I placed a lighted candle alongside the chimney on the first floor in the store * * . The side of the chimney was covered by a wood partition and was cloth and papered. I used about one half of a new candle. * * The cloth and paper was pulled loose from the partition and in such a manner as to come in contact with the candle at the base of the candle. The wood partition was as dry as a bone and highly inflammable. I then went upstairs and did not again go downstairs until the fire occurred.”
The time the fire occurred corroborates defendant’s confession as to the method of setting the building on fire. It was timed by his candle. On the witness-stand the defendant corroborates his confession in a number of particulars. "When he left the storeroom *298on the night of the fire he remained upstairs reading; an innocent circumstance within itself, but when taken in connection with his confession, it becomes a circumstance pregnant with meaning. With the confession as a key the jury might believe that he was lying in wait expecting the fire to occur. For two hours his wife and child had been in bed, but not the defendant. It was the defendant who first smelled the smoke of the burning building. This was perfectly natural in view of his confession, for he was waiting and watching. He also was the first to discover the fire. It was the defendant who was last in the store, — a harmless fact in itself, but it afforded him the opportunity to fire the building. Opportunity alone is insufficient to supply the necessary corroborative proof. However, in the glow of the confession and the evidence that the building was burned, together with other circumstances, the jury had a right to consider the fact of opportunity as a circumstance of some weight. In his confession he stated that the wooden partition “was as dry as a bone and highly inflammable”; and that he had set the incendiary candle near the chimney. As a witness, he testified that when he opened the door from the stairway in the storeroom the casing that surrounded the chimney was ablaze up near the top of the room. In his confession he stated that his book accounts and all of his postoffice records were kept on the opposite side of the store from where he had set the candle, and that he had expected to save them when the fire occurred. This portion of his confession is corroborated by him on the witness-stand upon trial. A neighbor who conducted a greenhouse said that he arose about 11 o’clock p. m. ; that his place of residence is about two blocks from Jennings Lodge postoffice; that as he went *299down to replenish his furnace he saw no fire at Jennings Lodge; that when he came up from attending to his furnace, the sky was red from the fire of the store building. The defendant’s candle must have burned down and set the building on fire at about that hour. The postal inspector’s testimony corroborates the defendant’s confession, as does the testimony given by the insurance agents relating to the policies that covered the defendant’s personal property. The daughter’s testimony corroborates the defendant’s confession relating to the matter of waiting and the discovery of the fire. The defendant testified that his wife was in bed asleep at the time of the fire; that he gave the alarm and attempted to save some records from burning. He abandoned his wife, who was compelled to save herself by leaving the building through a window on to the roof of the porch, from which she fell to the ground and in so doing broke her hip and also her wrist. Defendant concludes his confession with the statement that it “is a true statement in regard to the origin and my motive for setting the candle * * .”
Another circumstance that the jury had a right to consider as having persuasive force is the fact that, after the defendant’s confession and arrest and subsequent to appearing in the Justice’s Court, he called the district attorney into the hall and informed that officer that he, the defendant, was going to plead guilty and requested the district attorney to intercede with Judge Campbell, judge of the trial court, in his behalf.
It is the organic law that—
• “In all criminal cases whatever, the jury shall have a right to determine the * * facts.” Or. Const., Art. 1, § 16.
*300In the trial of this canse it was the exclusive province of the jury to judge all questions of fact. The court now examines the testimony for the purpose only of ascertaining if there is some other proof than the confession of the commissi on of the crime, or such a defect in it, as precludes a verdict of guilty.. The defendant’s motion to direct a verdict of acquittal may be deemed a demurrer to the evidence. Serving as it does, the purpose of a demurrer, it should be tested by the same rules. It admits the facts and every conclusion which a jury might fairly or reasonably infer from them: State v. Pomeroy, 30 Or. 16 (46 Pac. 797); State v. Jones, 18 Or. 256 (22 Pac. 840); First Nat. Bank v. Fire Assn., 33 Or. 172 (53 Pac. 8); Farrin v. State Industrial Acc. Com., 104 Or. 452 (205 Pac. 984), and the Oregon cases there cited.
The motion for a directed verdict “admits not only all the evidence proves, but all that it tends to prove.” Brown v. Oregon Lbr. Co., 24 Or. 315, 317 (33 Pac. 557). If there is any evidence other than the defendant’s confession showing or tending to prove that the crime of arson was committed as alleged in the indictment, the verdict of the jury should not be disturbed. The court cannot invade the province of the jury because of the fact that different minds might draw different conclusions from the evidence.
The Criminal Code of New York, Section 395, provides that:
“A confession of a defendant * * is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.”
In applying that rule the Court of Appeals of that state said:
*301“It is insisted that under the statute the corpus delicti must be proved, or evidence given tending to prove it, wholly independent of the confession * * . But we are of opinion that when, in addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a noncompliance with the requirement of the statute. The words of the statute, ‘additional proof that the crime charged has been committed,’ seem to imply that the confession is to be treated as evidence of the corpus delicti, that is, not only of the subjective criminal act, but also the criminal agency of the defendant; in other words, as competent proof of the body of the crime, though insufficient without corroboration to warrant a conviction. ‘Full proof,’ said Nelson, Ch. J., in People v. Bagley (16 Wend. 53, 59), ‘of the body of the crime, the corpus delicti, independently of the confession, is not required by any of the cases and in many of them slight corroborating facts were held sufficient’ People v. Jaehne, 103 N. Y. 182, 199, 200 (8 N. E. 374, 381).
A valuable note on the subject of proof of corpus delicti in a criminal case is contained in 68 L. R. A., pp. 3-80, inclusive. The editor states as a conclusion from the numerous decisions therein noted, that—
“While the confession of the accused alone is insufficient to sustain a conviction for the crime with which he is charged, and other evidence of the corpus delicti is essential thereto, yet the confession may be taken into consideration in connection with such other evidence in establishing the corpus delicti.
“Not infrequently the evidence which tends to, and does, prove the existence of the corpus delicti tends also to connect the accused with the crime; and in such cases the evidence is proper for both purposes.”
*302As was aptly stated in Smith v. State, 64 Ga. 605:
“Arson can seldom be established by positive testimony. The character of the offense makes it necessarily dependent for conviction upon confessions and corroborating circumstances. The force to be given to the corroboration must be left to an upright and intelligent jury.”
And in Wade v. State, 16 Ga. App. 163, 167 (84 S. E. 593), it was said:
“It is not often possible to make out a case of arson by direct proof establishing the corpus delicti or showing the connection of the defendant with the commission of the crime; for arson is seldom committed except at an hour when there is small chance that the criminal will be actually observed in the execution of his nefarious purpose, and it is also generally easy to commit the crime by stealth, without the help of an accomplice, without the beating of drums or blare of trumpets or any betraying noises; and therefore circumstances must generally be depended upon not only to show the guilt of the accused, but to establish the corpus delicti.”
It has been frequently said by the courts and text-writers that no universal and invariable rule can be laid down in regard to the proof of the corpus delicti. Each case depends upon its own peculiar circumstances: State v. Williams, 46 Or. 287 (80 Pac. 655); State v. Weston, 102 Or. 102, 119 (201 Pac. 1083). In State v. Howard, 102 Or. 431, 457 (203 Pac. 311), this court said:
“We take it that the corroboration is sufficient, if there is other evidence of the corpus delicti and of the agency of the defendant in the commission of the crime.”
The confession of Elwell may be considered together with all the other evidence to establish the fact *303that a crime was committed: 2 "Wharton’s Criminal Evidence, p. 1316, and authorities under note 6.
This excerpt has heen frequently cited with approval by state and federal courts:
“A confession will be sufficient if there be such extrinsic corroborative circumstances as will, when taken in connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond a reasonable doubt.” 6 Am. & Eng. Ency. of Ev. (2 ed.), 582, 583.
The following expression of the law is applicable to the case in issue:
“Where there has been a confession by the accused, much slighter proof is required to establish the corpus delicti than would be necessary where the state must make out the entire case, unaided by a confession. Any corroborative proof in such a case will be held sufficient which satisfies the mind that it is a real and not an imaginary crime which the accused has confessed, and the fact that he was the guilty party may be found by the jury, on proof much slighter than that ordinarily essential: People v. Bagley, 16 Wend. (N. Y.) 53.” Heard v. State, 59 Miss. 545, 546.
It is said by the editors of Ency. of Ev., Yol. 3, 665:
“It is now well established that the uncorroborated extrajudicial confessions of the defendant may be considered as evidence of the corpus delicti in connection with the facts and circumstances tending to show the defendant’s guilty connection with the offense charged.”
Motive often becomes a strong circumstance in pointing out the perpetrator of a criminal act. Motive is written large in this record by the defendant’s confession of his “desperation” in the matter of repaying the $2,260 hereinbefore referred to. The *304postal inspector’s evidence and other proof strengthen the evidence of motive that might have actuated the person to whom the jury found to he the doer of the act of burning the storehouse.
In the case of People v. Fitzgerald, 156 N. Y. 253, (50 N. E. 846), the prosecution claimed that the defendant had a motive in insuring the building to be burned. The court said in that case:
“In the investigation of all charges of crime it is competent to prove a motive on the part of the accused for the commission of the criminal act. Motive is an inducement, or that which leads or tempts the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act which has been clearly proved, but for the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which administers it has any concern. It is in cases of proof by circumstantial evidence that the motive often becomes not only material but controlling, and in such cases the facts from which it may be inferred must be proved.”
To the same effect are People v. Bennett, 49 N. Y. 137; Burrell on Circumstantial Evidence, 296; 20 Am. & Eng. Ency. of Law (2 ed.), 1077, 1078; State v. Hembree, 54 Or. 463 (103 Pac. 1008).
In State v. Hansen, 25 Or. 391 (35 Pac. 976), certain evidence was held admissible as “tending to corroborate the defendant’s confession, to show his connection with the commission of the crime and the motive for its perpetration.”
In the case of First Nat. Bank v. Fire Assn., supra, Justice Wolverton, in speaking for this court, said:
*305“That there was no direct evidence of the explicit fact of firing the goods, implicating the proprietors, none can gainsay; but the question here is whether there was any evidence, direct or circumstantial, sufficient to go to the jury, from which they could fairly infer the fact at issue.”
After detailing the conduct of Marcus "Wolf, one of the proprietors, prior and subsequent to the discovery of the fire, the Justice wrote:
“For the purpose of showing a motive, evidence was adduced tending to show that the stock of goods on hand was in some respects unsalable and undesirable, that times were somewhat depressing, and that they were financially involved to the extent of some $50,000. * * This testimony was pertinent to go to the jury, and was of a character from which they might infer, as they did, that the fire was of incendiary origin, and that Marcus Wolf was responsible for its inception. ’ ’
In People v. Wood, 3 Parker’s Cr. Rep. (N. Y.) 681, it is said that—
“Motive is a minor or auxiliary fact, from which, when established in connection with other necessary facts, the main or primary fact of guilt may be inferred, and it may be established by circumstantial evidence the same as any other fact. The proper inquiry, when the circumstance is offered, is, does it fairly tend to raise an inference in favor of the existence of the fact proposed to be proved. If it does, it is admissible, whether such fact or circumstances be innocent or criminal in its character.”
It was said in the Supreme Court of California in the case of People v. Lane, 100 Cal. 388 (34 Pac. 860):
“Motive precedes intention, and is the cause or reason upon which it is formed; and if this testimony clearly tended to show a pre-existing motive for the killing of Canfield, it would be admissible as tending *306to show that the homicide was not accidental, but was intentional and premeditated.”
Says a text-writer, 2 Wharton’s Criminal Evidence, page 1318:
“Nothing so convinces as a confession which we believe to be true. Nothing is so uncertain as the testimony offered to prove the confession.”
In the case at issue the confession was reduced to writing and signed by the defendant. The damaging statements contained therein do not depend for authenticity upon the frailty of human memory, nor upon the integrity of witnesses. It is a written confession, although made in response to questions propounded to him. This court has held that—
“A confession taken down by someone else and read to and signed by the accused is as much his written declaration as one entirely prepared by his own hand would be.” State v. Morris, 83 Or. 429, 441 (163 Pac. 567); State v. Stevenson, 98 Or. 285, 293 (193 Pac. 1030).
In the case at bar the confession was read by the defendant; corrections were made by him, then he signed. In fact he admitted when a witness that he made the inculpatory statements contained in his confession hut claimed that they were involuntary. In a special concurring opinion in State v. Morris, supra, Mr. Justice Harris says:
The “quality of voluntariness, so necessary to a confession, presents itself at two stages of a trial: (1) To the judge; and (2) to the jury. The judge passes upon the admissibility and the jurors are the exclusive judges of the weight and credibility of the confession. The decision of the judge is only preliminary while that of the jury is ultimate.”
The jury had a right to believe the defendant’s confession to be his deliberate act and that it stated the *307truth, hut were restrained by a rule of criminal procedure from finding him guilty until there was some other proof of the commission of the crime. “Some other proof,” as used in Section 1537, Or. L., means additional proof, not the same,-- but different. It means that the confession of the defendant relating to the commission of the crime must be corroborated. To corroborate, is to strengthen; to affirm by additional security, to add strength.
It was said in State v. Guild, 10 N. J. L. 180 (18 Am. Dec. 404), that—
“Corroborating circumstances, then, used in reference to a confession, are such as serve to strengthen it, to render it more probable. Such, in short, as may serve to impress a jury with a belief of its truth.”
The proof fulfills the commandment of the law.
Section 1537 of our Code enacts a principle into statutory law that has been designed by the “collected reason of ages.” It is a human principle intended to shield an innocent person from convicting himself of crime by making a confession as the result of some hallucination.
The law out of tender regard for man’s liberty and life must be satisfied that a real and not an imaginary crime has been committed before it strikes. In this case the record justifies the verdict of the jury. They were the judges of the facts. They could reasonably find that the burning of the storehouse constituted a real and not an imaginary crime and that Elwell was the man.
For the foregoing reasons I concur in the conclusion of the dissenting opinion of Mr. Chief Justice Burnett.