PEOPLE
v.
ALLEN
Docket No. 77-5114.
Michigan Court of Appeals.
Decided June 20, 1979.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Charles M. Sibert, Assistant Prosecuting Attorney, for the people.
Karl A.H. Bohnhoff, for defendant.
Before: V.J. BRENNAN, P.J., and BRONSON and CYNAR, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548. She was sentenced to life imprisonment and now appeals by right.
Jimmy James Allen, defendant's husband, was found shot to death in the kitchen of his Lansing home. An autopsy showed that he had received two gunshot wounds, one a superficial wound to the back and a second wound which had punctured his right lung and ruptured his aorta causing *65 him to bleed to death. Defendant confessed to the crime, stating that she went upstairs to the bedroom where her husband was sleeping and shot him in the back. Her husband got out of bed, and ran downstairs to the kitchen. Defendant said she followed him and then shot him a second time. The prosecution also presented testimony that prior to killing her husband, defendant stated she wanted her husband killed and on two occasions had talked to friends about trying to find her a hit man to kill her husband, a task for which she was willing to pay $500, and finally $1,000.
Defendant's first allegation of error concerns the use of her statements to establish the corpus delicti of first-degree murder and causes us to examine the scope and extent of the corpus delicti rule.
The traditional definition of the corpus delicti of any felonious homicide has been a dead body with a criminal agency as its cause. See La Fave and Scott, Criminal Law, § 4, p 16. These requirements were certainly met in the present case as the placement of the mortal wounds excludes the possibility of their being self-inflicted. In Michigan, however, our Supreme Court has stated that in order to establish the corpus delicti of first-degree murder, the prosecution must show not only the two above-mentioned elements, but must also prove the element which distinguishes first-degree murder from second-degree murder which, in the present case, is premeditation. People v Sparks, 393 Mich. 135; 224 NW2d 481 (1974), People v Allen, 39 Mich. App. 483, 494; 197 NW2d 874 (1972), dissenting opinion, LEVIN, J., adopted by the Supreme Court, 390 Mich. 383; 212 NW2d 21 (1973).
The physical and circumstantial evidence in this case does not appear in and of itself to establish *66 the element of premeditation. Therefore, the only way the prosecution could have proven premeditation was through defendant's confession or through the statements made by defendant prior to the murder.
It has long been the rule in this state that the corpus delicti of a crime cannot be established by the extra-judicial confession of the accused. People v Allen, 390 Mich. 383; 212 NW2d 21 (1973), People v Ranney, 153 Mich. 293; 116 N.W. 999 (1908). Therefore, defendant's confession could not have been used to establish the corpus delicti.
Defendant also contends, however, that all of her statements, not just her confession, must be excluded when establishing the corpus delicti. We do not agree.
The corpus delicti rule only precludes confessions and admissions which necessarily amount to a confession from being used to establish the corpus delicti. See People v Porter, 269 Mich. 284, 290; 257 N.W. 705 (1934), People v Allen, 39 Mich. App. 483, 505, fn 23; 197 NW2d 874 (1972).[1] Statements made by the accused prior to the time the crime was committed do not amount to confessions, because at the time they were made no crime had been committed and therefore there is nothing to confess or admit to. Thus, statements made prior *67 to the time the crime was committed can be used to establish the corpus delicti of the crime. Warszower v United States, 312 U.S. 342; 61 S. Ct. 603; 85 L. Ed. 876 (1941), People v Randall, 42 Mich. App. 187; 201 NW2d 292 (1972).
Adoption of defendant's arguments that all statements of the accused should be excluded coupled with the Supreme Court's decision that premeditation must be shown to establish the corpus delicti of first-degree murder would effectively preclude convictions for first-degree murder in a vast number of cases. Since finding a body with one bullet hole in it does not usually provide circumstantial evidence of premeditation, the cold, calculated one-shot murderer could not be convicted of first-degree murder unless an eyewitness saw him deliberately aim and shoot his victim. Therefore, if we adopted defendant's position, we would be rewarding the killer for the skill of his marksmanship and his cleverness in shielding his activities from the view of other people. This we will not do.
Defendant's other allegations of error do not merit discussion or reversal.
Affirmed.
NOTES
[1] Although there are references in Judge (now Justice) LEVIN'S opinion in Allen that the corpus delicti cannot be established by the statements of the accused (Allen at 497, 505), we feel this labeling was inadvertent and in no manner expands the opinion beyond the question presented which was whether
"[T]he corpus delicti of first-degree murder can be established without evidence independent of the accused person's confession [emphasis added] of the essential element that distinguishes the offense of second-degree murder from first-degree murder." Allen at 494.
We are led to this conclusion because the vast majority of the references in the opinion are to defendant's confessions not merely defendant's statements.