Dissenting Opinion
Bobbitt, J.I dissent from the opinion written herein by Judge Arterburn in its entirety.
First: Robbery must be shown by competent evidence, other than the extrajudicial statements of appellant, to prove the corpus delicti under the indictment in this case.
The appellant herein was charged and convicted with the killing of one Mildred Grigonis while robbing her of $250 in money.
The principal question raised by appellant is that there is not sufficient evidence, independent of his extrajudicial confession and statements, to establish the corpus delicti.
Without citing any authority for the statement, the opinion by Judge Arterburn says that in order to estab*207lish the corpus delicti “the independent evidence must be of such a character that reasonable inferences maybe drawn to support a conclusion that a crime of the nature and character charged has been committed by someone.”
I agree that there is sufficient independent evidence from which it might be inferred that Mildred Grigonis was murdered. If appellant had been charged with killing the decedent purposely and with premeditated malice, then the evidence would have been sufficient to establish the corpus delicti. But appelant was not charged with premeditated murder, but with killing while perpetrating a robbery on the deceased named in the indictment.
Acts 1941, ch. 148, §1, p. 447, being §10-3401, Burns’ 1956 Replacement, defines two specific and distinct crimes (1) killing a human being purposely and with premeditated malice; and (2) killing a human being while “in the perpetration of or attempt to perpetrate a rape, arson, robbery, or burglary.” (My italics.)
It is not denied that appellant was charged and convicted of killing while in the perpetration of a robbery. Hence, robbery is an essential element of the crime and must be shown with the same degree of proof as the killing. The robbery charged is as much a part of the corpus delicti as is the killing. Unless both are present appellant’s conviction cannot be sustained.
In order to establish the corpus delicti in this case it was necessary for the State to show by competent evidence, other than and independent of appellant’s extrajudicial confession or statement, that Mildred Grigonis was killed by someone while he was in the act of perpetrating a robbery.
Even the State in the argument section of its brief *208recognizes that the corpus delicti in this case is “the commission of murder in the perpetration of robbery.”
As early as 1855 this court in Stocking v. The State (1855), 7 Ind. 326, in determining the corpus delicti where the body of the victim was burned in a fire, recognized that in order to establish the corpus delicti it was necessary to prove that the specific crime charged was committed by someone, when at page 330 it said:
“Looking at the evidence in the record, we have no reason to doubt that the human body seen in the flames was the body of John Rose.”
In Griffiths v. The State (1904), 163 Ind. 555, 72 N. E. 563, which case is relied upon to support the judgment herein, the rule is stated that in order to establish the corpus delicti it is necessary to “make-it clear that the crime charged was committed.”1 Also, at page 558 of 163 Ind., this court said:
“We are mindful of the rule that the extrajudicial confession of a defendant is not alone sufficient to make out the corpus delicti, and that as applied to a prosecution for larceny it is required that there must be proof of the commission of the particular larceny charged.” (My italics.)
In Messel v. State (1911), 176 Ind. 214, 95 N. E. 565, appellant was convicted of rape. In considering the sufficiency of the evidence to sustain the conviction this court, at page 217 of 176 Ind., said:
“Two things were necessary to be proved beyond a reasonable doubt before appellant could be convicted, namely the corpus delicti—the fact that the crime of rape had been committed on the child— and the agency of appellant in the commission of that crime.” (My italics.)
*209In Gaines v. State (1921), 191 Ind. 262, 132 N. E. 580, appellant was charged with the crime of burglary by breaking and entering into the dwelling house of Andrew Heilman. This court there held that there was no evidence independent of appellant’s confession tending to show that a burglary was committed by breaking into the house of Andrew Heilman, and the case was reversed for failure to prove the corpus delicti. Had the rule as stated by the majority opinion been in effect at that time, this case would have been affirmed because there was independent evidence that a burglary had been committed—a crime of similar nature to the one charged—but no evidence that the specific crime charged in the indictment had been committed..
In Hunt v. State (1939), 216 Ind. 171, 23 N. E. 2d 681, the appellant was found guilty of operating a motor vehicle while under the influence of intoxicating liquor. He contended that there was no competent proof of the corpus delicti. After stating, without citation of authority, that “the corpus delicti, as used in the criminal law, means the fact that a crime has been committed,” this court further said, at page 178 of 216 Ind.:
“In a case like the one at bar the corpus delicti would be established, we think, by proof beyond a reasonable doubt that a motor vehicle was operated on a public highway of this state, and that the operator thereof was at the time under the influence of intoxicating liquor. Such a showing, when coupled with proper proof of the identity of the accused, would make out a prima facie case of guilt.”
In Hawkins v. State (1941), 219 Ind. 116, 129, 37 N. E. 2d 79, this court, citing 14 Am. Jur., Criminal Law, §6, p. 758, as authority for the statement, said:
“ ‘Generally speaking, the term “corpus delicti” means, when applied to any particular offense, that *210the specific crime charged has actually been committed by someone.’ ”
The question as to the proof of corpus delicti was again raised in Evans v. State (1946), 224 Ind. 428, 68 N. E. 2d 546, and at page 432 of 224 Ind., this court reaffirmed the rule as stated in Hawkins v. State, supra.
While in Schuble v. State (1948), 226 Ind. 299, 301, 79 N. E. 2d 647, it is said, “Corpus delicti means the fact that a crime has been committed,” citing Hunt v. State, supra (1939), 216 Ind. 171, 23 N. E. 2d 681, the court actually found that the corpus delicti had been proven because there was proof that the specific crime charged in the indictment had been committed by someone.
In Parker v. State (1950), 228 Ind. 1, at page 6, 88 N. E. 2d 556, in an opinion by the same judge who wrote Sehuble V. State, supra, the rule which this court has followed since 1855 was succinctly stated as follows:
“Proof of the ‘corpus delicti’ means proof that the specific crime charged has actually been committed by someone.”
This rule was reaffirmed in Dennis v. State (1952), 230 Ind. 210, 216, 102 N. E. 2d 650; Simmons v. State (1955), 234 Ind. 489, 492, 129 N. E. 2d 121; Hunt v. State (1956), 235 Ind. 276, 280, 133 N. E. 2d 48; Taylor v. State (1957), 236 Ind. 415, 140 N. E. 2d 104,108; and Joseph, Pierce v. State (1957), 236 Ind. 529, 542, 141 N. E. 2d 109.
Ewbanks Ind. Cr. Law, Symmes Ed., Evidence, §392, p. 243, defines corpus delicti as “The term ‘corpus delicti’ means proof that the crime charged has been committed by someone, . . .”
26 Am. Jur., Homicide, §6, p. 159, defines corpus *211delicti as: “The term ‘corpus delicti’ means the body of the offense; the substance of the crime.” (My italics)
In 23 C. J. S., Criminal Law, §916, p. 182, it is said:
“The corpus delicti cannot be presumed. To sustain a conviction the evidence must be sufficient to establish the corpus delicti, that is, to show the commission of the crime charged.” (My italics.)
“The offense”—“the crime”—as used above, can mean only the crime charged in the particular case under consideration.
If the rule were otherwise the State would then be permitted to prove a crime without proving one of the essential elements, that is, that the particular crime charged was committed by someone. Proof only of a crime of the “nature and character charged” would not satisfy any of the rules as established by the foregoing authorities.
As recently as March, 1956, speaking through Judge Arterburn, we recognized again the rule that proof of corpus delicti means that the crime charged was committed by someone, in Hogan v. State (1956), 235 Ind. 271, 132 N. E. 2d 908, where it was alleged that there was no proof of the corpus delicti aside from appellant’s extrajudicial confession, and at page 275 of 235 Ind., said:
“It is well established law, not only in Indiana but practically all jurisdictions where the common law prevails, that the state cannot prove the commission of a crime by the extrajudicial confession alone of a defendant. To hold otherwise runs counter to the generally accepted principles of the common law, that one may not be induced to convict himself. The crime or the corpus delicti must be established by some independent, additional, or corroborative evidence of probative value, aside from the confession alone. Parker v. State (1950), 228 Ind. 1, 88 N. E. 2d 556, 89 N. E. 2d 442; Gaines *212v. State (1921), 191 Ind. 262, 132 N. E. 580; Messel v. State (1911), 176 Ind. 214, 95 N. E. 565; Underhill’s Criminal Evidence, 4th Edition, §36, pp. 42, 43; 23 C. J. S., Criminal Law, §916c, p. 185.” (My italics.)
In Hansbrough v. State (1950), 228 Ind. 688, 94 N. E. 2d 534, (Cert. denied, 340 U. S. 944, 95 L. Ed. 681, 71 S. Ct. 502), the appellant was charged with killing one Lloyd Lawson Abbett in an attempt to perpetrate robbery. Appellant contended that the corpus delicti was not proven. In that case this court again reaffirmed the rule on proof of corpus delicti as stated in Hawkins v. State, supra (1941), 219 Ind. 116, 37 N. E. 2d 79, and at page 692 of 228 Ind., said:
“We think, in the case at bar, the corpus delicti would be proved when the evidence tended to prove that Lloyd Lawson Abbett was shot and killed at the time and place and in the manner charged in the first count of the indictment. Hunt v. State (1939), 216 Ind. 171, 178, 23 N. E. 2d 681; Schuble v. State (1948), 226 Ind. 299, 301, 79 N. E. 2d 647; Evans v. State (1946), 224 Ind. 428, 68 N. E. 2d 546.”
In the Hansbrough Case the accused was charged with the same crime—killing a human being while attempting to perpetrate a robbery—as is the appellant herein, and it seems to me that if it were necessary to prove the robbery as well as the killing to establish the corpus delicti in that case, it must follow that in order to prove the corpus delicti here, the State must prove that the robbery charged in the indictment, as well as the homicide, was committed by someone.
No one is here contending or even suggesting “that the specific crime in its exact detail must be first proved before a confession is admissible?”
“In Indiana the independent evidence alone need not be sufficient to establish the corpus delicti be*213yond, a reasonable doubt, but there must be some evidence of probative value aside from the confession to prove that the crime charged was committed. When there is some independent evidence tending to prove that the crime charged has been committed by someone the confession may be considered with the independent corroborating facts in determining whether the corpus delicti has been established beyond a reasonable doubt. [Citing authorities.]
“However, it seems established over the years that the corroboration required is not of incidental facts stated in the confession but the offense charged had been committed. In Underhill’s Criminal Evidence (4th Ed.), § 36, p. 43, this subject is covered in the following language:
“ \ . The “corroboration” of a confession or admission which is required in order to prove the corpus delicti refers not merely to facts proving the confession but to facts concerning the corpus delicti, or evidence independent of the confession. The corroboration of a confession does not necessarily prove the corpus delicti.’ ” Parker v. State, supra (1950), 228 Ind. 1, 7, 8, 9, 88 N. E. 2d 556, 89 N. E. 2d 442.
However, it is my position that it was not enough here to show that a crime of “the general character charged, namely, murder, had been committed.”
Under the rule as proposed, a man who was charged with the stealing of personal goods of John Smith could be convicted o'n evidence showing that the stolen goods belonged to Dave Jones, because the State would have shown “that a crime of the nature and character charged,” i.e., larceny, had been committed. The same would be true on a charge of rape, robbery, arson or any other crime.
Second: The evidence in the record here, independent of appellant’s extrajudicial confession or statement,, upon which the State must rely to prove the robbery *214charged in the indictment, is summarized in the majority opinion and I shall not burden this opinion by restating it here.
In my opinion the unconnected facts (1) that the victim had, three days before her disappearance, withdrawn $203.55 from a savings account; (2) that the charred remains of her purse and other personal articles were found buried near his mother’s garage, at the residence where appellant lived at the time the victim disappeared, and (3) that appellant paid $200 cash for an automobile on the day after the victim's disappearance, are not sufficient to support an inference that someone robbed the decedent herein as charged in the indictment. • •
It is entirely possible, and there is no independent evidence in the record to indicate otherwise, that the articles found in the yard were stolen from the victim’s car by appellant or someone else. In such event, appellant could not have been guilty of killing decedent while perpetrating a robbery. Under these circumstances the jury could only guess which crime—robbery, larceny or receiving or concealing stolen goods—if any, had. been committed, Both larceny and receiving or concealing stolen goods are “felonious” acts. But neither is mentioned in the statute under which appellant was charged and convicted. A man’s life may not be taken away on mere guess or speculation.
The jury could only guess or suspect that the articles found in the victim’s purse were taken from her by robbery. A mere trace or trifle of evidence is not sufficient to sustain an issuable fact. Rhoades v. State (1946), 224 Ind. 569, 575, 70 N. E. 2d 27. Nor can a finding be based upon mere suspicion, possibility, guess or conjecture. Christen v. State (1950), 228 Ind. 30, 40, *21589 N. E. 2d 445; Todd v. State (1951), 230 Ind. 85, 90, 101 N. E. 2d 922.
There is no evidence here that the victim had any money on her person when she disappeared on August 17, 1956. Nor is there any evidence to show that the money with which appellant bought the car was that withdrawn by the victim from her savings account on August 14, 1956. Even if there were such evidence the jury would still be compelled to guess whether the money was taken in the perpetration of a robbery or of larceny, or by some other means or method.
The fact, if established, that someone attempted to destroy incriminating evidence and that a wallet is normally used to carry money, certainly is not evidence sufficient to support an inference of robbery in this case.
No one disputes that the possession of stolen goods is circumstantial evidence of the criminal taking of property, but the mere possession furnishes no proof of ■the manner of taking.
When considered with the other independent evidence in the record here, the evidence as recited in the majority opinion does not, in my opinion, furnish a state of facts sufficient to support a reasonable inference that someone robbed the victim herein as charged in the indictment.
Third: The majority opinion distinguishes Parker v. State, supra (1950), 228 Ind. 1, 88 N. E. 2d 556, from the case at bar on the theory that in that case the body of the victim was never identified.
In the Parker Case the defendant in his signed confession told in detail where he had disposed of parts of the dismembered body of the victim, and the police found the skull and upper parts of a skeleton near the place designated by the defendant. There was testimony *216that the bones were those of a female between the ages of 47 and 65 years of age. There was no evidence that the bones or skull were those of the victim named in the indictment. This court reversed the judgment in that case for failure to prove the corpus delicti because there was no independent proof that the specific person named in the indictment had been killed, and at page 6 of 228 Ind., said:
“Proof of the ‘corpus delicti’ means proof that the specific crime charged has actually been committed by someone.”
If the rule as stated by Judge Arterburn, as to what is necessary to establish the corpus delicti, had been the law in Indiana at that time, the Parker Case would have been affirmed, because in that case there was proof that “a crime of the nature and character charged”— i.e., murder—had been committed.
The cases of Griffiths v. The State, supra (1904), 163 Ind. 555, 72 N. E. 563, and Watts v. State (1950), 229 Ind. 80, 95 N. E. 2d 570, are relied upon to support the conclusion that the evidence here is sufficient to prove the corpus delicti.
In discussing the Griffiths Case, it is stated, “There was no evidence as to the exact ownership of the property taken other than the confession of the defendant.” At pages 556, 557 of 163 Ind., it is said:
“It appears from the evidence that on December 28, 1903, the firm of Hart, Schaffner & Marx shipped a box containing one coat and three vests, with other clothing, from their factory in Rochester, New York, to their wholesale house in Chicago, Illinois. The goods were shipped in a car marked ‘N. Y. & C., 14,051/ On the night of January 4, 1904, this ear was broken open, in the railroad yards at Elkhart, Indiana, while en route to Chicago, and the articles of clothing particularly here*217tofore mentioned were stolen from the box in said car. In addition to the evidence stated, an employe of Hart, Schaffner & Marx testified that the box of clothing was shipped on the ‘Lake Shore & Michigan Southern Railway.’ Witnesses who described themselves as employes of the Lake Shore & Michigan Southern Railway Company, testified to facts showing a larceny of a coat and three vests from said box while it was in said car; and, in their testimony, said witnesses referred to the car as being at that time in the ‘Lake Shore Yards.’ ”
It seems to me that this is competent evidence of probative value, other than the confession of Griffiths, and that it was sufficient to support a reasonable inference that the specific crime charged had been committed by someone.
In the Watts Case this court, following seven pages of summary of the evidence (229 Ind. 93-100) with which I will not burden this opinion by repeating, at page 101 of 229 Ind., said:
“In Indiana, the independent evidence alone need not be sufficient to establish the corpus delicti beyond a reasonable doubt, but there must be some evidence of probative value aside from the admissions to prove that the crime charged was committed.” (My italics.)
It will be noted that in that case this court recognized that the “crime charged” must be proven in order to establish the corpus delicti.
The fact that it was held in the Griffiths and Watts Cases that the evidence was sufficient to establish the corpus delicti is, on the authority2 cited and quoted in the majority opinion, not authority for holding that the independent evidence here is sufficient to sustain the proof of corpus delicti. As is stated in the quotation *218referred to above “each case must depend on its own peculiar circumstances.”
In my opinion there is not sufficient evidence here, independent of the extrajudicial statements of appellant, from which a proper inference may be drawn, to show that Mildred Grigonis was killed by someone in the perpetration of a robbery. For this reason the verdict of the jury is contrary to law and the judgment should be reversed.
Emmert, J., concurs in this opinion as to the rule on independent proof of the corpus delicti, but believes there was sufficient proof to admit the confession.
Note.—Reported in 154 N. E. 2d 720.
. See quotation from Griffiths v. State (1904), 163 Ind. 555, 72 N. E. 563, in Judge Arterburn’s opinion.
. 45 A. L. R. 2d 1316; 127 A. L. R. 1130.