I dissent. I can agree in what is said in the court's opinion up to the point where it is stated: *Page 589
"The rule we deduce from the way it is applied in the overwhelming majority of the cases is that there must be evidence, idependent of the confession, corroborative thereof, consistent therewith, forming a basis or foundation for the confession, and tending to confirm and strengthen it, before the confession may be considered by the jury as evidence of guilt."
The corpus delicti must be proved independently of the confession. Some textbook writers and judges use the phrase that there must be corroboration of the confession by independent evidence of the corpus delicti. A moment's reflection will reveal that the two ideas are not quite the same. Where it is stated that there must be corroboration of the confession by other evidence showing the commission of a crime there is implied the conception that the confession is to be admitted, taken as a basis and then other evidence required to corroborate it. The procedure is not to look at the confession and then at the independent evidence of corpus delicti to see if it is corroborated, by the latter, but to put one's hand over the confession as if it had never been introduced and see if there is independent evidence of the two elements of the corpus delicti, to wit: (1) Death of a person, and (2) Death by criminal agency. In other words, the question of whether there is evidence of the corpus delicti is not approached from, or through the confession but independently of it. This is because, as says the opinion, unless there is proof that a crime has been committed there is no occasion to investigate the third question: Did the defendant commit it? And the principle that there must be evidence that the crime of which defendant is accused has in fact been committed remains the same regardless of whether or not there is a confession. It is not necessary to decide that a confession must be corroborated by independent evidence of corpus delicti. The principle is that there must be evidence of the damage or injury and evidence that it was criminally inflicted and that the fact that a person says he was the criminal agent is not sufficient without independent evidence that the damage or injury was caused by *Page 590 a criminal act. But it is not certain, nor need it be now decided, that the independent evidence must be corroborative of the confession or "consistent therewith," or "tend to confirm and strengthen it." If, for instance, by the independent evidence it is certain that a man met his death by foul play and another confessed that he killed him, but in a different way than the body revealed, it probably would not prevent the confession from being admissible provided at least that there was other evidence corroborating the confession. The opinion confuses the principle laid down in many jurisdictions that confessions must be corroborated (see Admissions and Declarations, 1 R.C.L. 580, Sec. 129), with the statement wrongly made that they must be corroborated by the independent testimony of corpus delicti. There may be independent proof of corpus delicti not corroborative of the confession and still circumstantial or other evidence which would corroborate the confession to the extent that the confessor really killed deceased. Whether the independent evidence of the corpus delicti must be corroborative or consistent with the confession is not before us and need not be decided. In fact, to say that the confession must be corroborated by independent evidence of corpus delicti consistent therewith puts the cart before the horse and is seemingly inconsistent with other portions of the opinion. It makes the admission of the independent evidence of corpus delicti seemingly conditional on whether it corroborates and is consistent with the confession. But in most cases proof of the corpus delicti precedes introduction of the confession and is introduced without thought as to whether it will corroborate or be consistent with a confession later to be introduced.
But the opinion I think falls into graver error when it states that in this case there was no evidence independent of the confession to prove the corpus delicti. Much as one sympathizes with this unfortunate young woman who had to bear alone under dire circumstances all the pain and hardship for which another was equally responsible, it should not *Page 591 divert our minds from the true rule of law. The opinion leaves out of consideration of the independent proof of corpus delicti one very distinctive piece of evidence, to wit; the evidence of Dr. Wright that Fern told him she wanted to be examined in order to disprove that she had had a baby. The following facts were introduced independently of any confession: That the dead baby was hers; that she had disposed of it in the privy; that it died of asphyxiation; that she attempted to "alibi" herself from any connection with her own baby. Certainly such attempt might have been consistent with a desire to hide its birth rather than its death, but since the law states that the independent evidence of corpus delicti need be only slight, this appears to be sufficient until she explains her motive for attempting to frame a defense against any accusation that the baby belonged to her. The effect of the opinion is to require the independent evidence of the criminal agency part of the corpus delicti to be derived from the body itself. There are cases where people may be put to death by means which cannot be detected from any examination of the body. It would be unfortunate if we should lay down a rule that evidence of corpus delicti would not only have to be independent of the confession, but such as must be derived from an examination of the body. There may be conduct of the accused tending to prove criminal agency independent of the confession and relating to the body, but in regard to which the most complete examination of the body or any of its parts would furnish no probative evidence. The proof of an attempt to establish an alibi or completely dissever oneself from any connection with the body, plus proof that one had to do with the dead body is such evidence. This case presents an excellent illustration. The fact that such attempt may have been consistent with another motive than to hide the death does not make it any the less evidence tending to prove that the person so attempting wanted to disestablish any connection with the death. Such person may show on the stand another motive and let the jury decide. In the instant case *Page 592 Fern's attempt to have the doctor pronounce her a non-mother may have been for the purpose not of attempting to avoid being implicated in a death but in the preliminary act of a birth. But the court cannot import into the case its own idea of what the motive may have been. If the acts are consistent with the motive of hiding an illegal implication in the death of the baby, it is some proof tending to show she illegally caused its death although there may be within her bosom another explanation.
The third part of the opinion from which I must dissent is the importation, by the writer of the opinion of the results of his own medical researches. This is certainly something new in opinion writing. The excerpts from medical authorities came not from the record in the case or any testimony but from the opinion writer's own researches into medical volumes. The doctor had given as his opinion that the baby died of asphyxiation. I cannot see that this court has the duty or the right to import into the opinion the statements of medical men to show that the doctor's opinion had no basis. We cannot take judicial notice of the opinions expressed by physicians in medical work. Perhaps if the doctor had been cross-examined along those lines he would have sufficiently justified his opinion in accordance with the excerpts imported in the opinion or he might have shown that they were not altogether accurate or that they did not furnish all the tests of suffocation. It is true that in all probability the doctor did not make as thorough an examination of the body as he might have because he had already, from Fern's statement to him, fully concluded that the child was suffocated. But he did give his opinion that death came from asphyxiation. It was then incumbent on defendant to attack such conclusion by showing that the body did not show the symptoms or indicia of asphyxiation. This court cannot supply such evidence of lack of support for the opinion. It cannot argue the defendant's case against the doctor. *Page 593
I cannot agree that the objection to the doctor's expressing his opinion should have been sustained. It is generally true that where an expert is giving his opinion on personal knowledge or observations rather than on a hypothetical question he should first state such facts. But this means that he must state such facts as he has observed. It does not mean that he must have made the particular kind of examination which counsel thinks he should have made or that he should be able to say that he found or did not find certain things which counsel or this court after its excursions into the medical books thinks he should have testified as to finding or not finding in the baby's body.
The cross-examiner may discredit this opinion by showing the examination inadequate or superficial or by demonstrating that the doctor failed to find or observe certain indicia of a cause of death but that all goes to the credibility and not the admissibility.
I rather think, too, that a fair intendment of the doctor's testimony that "there was some internal force which caused death" was that the internal force was lack of oxygen which would have its effect internally. He meant to testify that such lack of oxygen came from asphyxiation. Asphyxiation means the act of causing asphyxia — a suspended animation of living organisms due to a deficiency of oxygen and an excess of carbon dioxide. The doctor was careful not to testify as to the cause of this asphyxia whether external or internal. His opinion that it died of asphyxia is admissible without his having to give an opinion as to whether the asphyxia was caused by suffocation or strangulation.
I differ on a fourth point. I do not think it necessary to determine in this case that the independent evidence of corpus delicti must precede the confession. I admit that such order is preferable, but there is respectable authority to the effect that if the independent evidence appears in the record the fact that it did not precede the confession is not ground for reversal.People v. Jones, 123 Cal. 65, 55 P. 698; People v.Saunders, 13 Cal. App. 743, 110 P. 825; People v. Morley, *Page 594 8 Cal. App. 372, 97 P. 84; People v. Besold, 154 Cal. 363,97 P. 871. Says Wharton, Vol. 1, Sec. 356, 12th Ed. on Criminal Law:
"In theory the corpus delicti should be satisfactorily established before any proof of the criminal agency in bringing about the state of facts is presented to the jury, that is, before the jury can proceed to consider who committed the crime; but in practice the criminal agency of accused in the transaction — as in producing death of deceased — is frequently so involved that the testimony of both issues is accepted at the same time; that is to say, in some cases the evidence establishing the existence of a crime at the same time points out the guilty agent of that crime, while in others the evidence of the crime is visible, but the perpetrator is unknown."
Therefore, I except from the statement in the opinion which reads:
"The law says that before such inquiry should be made, before defendant be called upon to face such an issue, the corpus delicti must first be shown." (Italics added.)