[491]
CAMPBELL, J.,
pro
tem.
I dissent. I am of the opinion that there is not sufficient evidence to establish the
corpus delicti.
The only evidence remaining after eliminating not only the extrajudicial admissions and the confessions of the defendant, but also such evidence as tends to connect the defendant with the crime when established is that the child cried in defendant’s bedroom; that she complained of an inflammation, and that she was subsequently found to be suffering from a venereal disease; that none of those residing in the house, unless it be the defendant, were infected with such disease, and which disease all the experts who testified agree in the case of a female child is more usually contracted by accidental infection than by direct contact, as from bed linen, towels, soap, sponges, and lavatory seats. This evidence at best but casts a suspicion upon the defendant and proves mere opportunity. The proofs of mere suspicious circumstances and of opportunity to commit a crime are never sufficient to justify a conviction
(People
v.
Robins,
171 Cal 466 [154 Pac. 317]), and
a fortiori
to establish the existence of a crime.
In the majority opinion
People
v.
Jones,
123 Cal. 65 [55 Pac. 698], is relied upon as authority holding that the evidence is sufficient to establish the
corpus delicti.
It is true that in the Jones ease the court uses this language, quoted by Mr. Justice Clifford from Greenleaf on Evidence in
United States
v.
Williams,
1 Cliff. 24 [Fed. Cas. No. 16,707]; “Full proof of the body of the crime, the
corpus delicti,
independently of the confession, is not required, says Nelson, C. J., in
People
v.
Badgley,
16 Wend. (N. Y.) 59, by any of the eases; and in many of them slight corroborating facts were held sufficient.” If the court in the Jones ease intended to vary the rule which has had the sanction of the courts of this state from the beginning of judicial pronouncement on the question that the extrajudicial statements, admissions, and confessions of an accused are not admissible until the
corpus delicti
has been established, such holding has been brushed aside and the time-established rule reaffirmed in
People
v.
Vertrees,
169 Cal. 404 [146 Pac. 890], where the court holds that “while slight proof of the
corpus delicti
has in many cases been properly held a suffi
[492]
cient basis for the admission, of such confession, it is nevertheless true that the confessions and admissions of the defendant cannot be used to establish any necessary element for the commission of the crime. ... It has been held in this state that although all the elements of the crime charged must appear in the proof of the
corpus delicti,
it is not necessary that the evidence of the criminal act should be of the conclusive character required for conviction before the confession may be admitted in evidence. But no authority has been cited which justifies
the use of the confession itself to prove one or more of the necessary elements in the commission of the crime
that would be utterly lacking without such confession.” (Italics mine.) (See, also,
People
v.
Simonsen,
107 Cal. 346 [40 Pac. 440];
People
v.
Tapia,
131 Cal. 651 [63 Pac. 1001];
People
v.
Frank,
2 Cal. App. 285 [83 Pac. 578];
People
v.
Frey,
165 Cal. 144 [131 Pac. 127].)
It is evident that
People
v.
Jones
was not called to the attention of the court when it was considering the Yertrees ease. If it had been the court would doubtless have disagreed with the language quoted that “full proof of the body of the crime, the
corpus delicti,
independently of the confession is not required,” or would have declared it to be mere
dictum,
which it appears to be, as it was not necessary to a decision of the case, there being sufficient evidence to establish the
corpus delicti
independent of the confession, and in fact the court so stated: “In the case before us I think the evidence, though weak and unsatisfactory in particulars capable of more explicit statement, is sufficient to justify the admission of the confession.”
The language of Mr. Justice Clifford quoted in
People
v.
Jones
is also quoted in
People
v.
Selby,
198 Cal. 435 [245 Pac. 426]. So, also, does the court in the Selby case quote with approval from
People
v.
Rowland,
12 Cal. App. 7 [106 Pac. 428] : “It is of course a well-settled rule of law that the confession or extrajudicial admissions of a party accused of crime cannot be considered for the purpose of proving the
corpus delicti
or, in other words, of proving the elements necessary to constitute the crime with which he is charged.” The question with which the court in the Selby case was primarily concerned, when quoting the language of Mr. Justice Clifford to the effect that full proof of the body of
[493]
the crime independently of the confession is not required, was concerning an instruction refused which was in effect that the jury could not consider the confession of the accused until the
corpus delicti
had been established to a moral certainty and beyond a reasonable doubt. It is clear that the language of Hr. Justice Clifford quoted in the Selby case from the Jones case was not intended by the court to establish a new rule in this state; otherwise the court would have expressly so stated and not cited with approval the Rowland case, which is supported by the unanimous authority on the question in this state and which is in direct conflict therewith.
It is apparent that in the instant case the elements of the commission of the crime are utterly lacking without the admissions and confession of the defendant. These, under the rule stated in
People
v.
Vertrees, supra,
and which is supported by the other authorities cited, cannot be used to supply the defects of proof of any essential element of the crime. The infection from which the child was suffering was only one of the elements of the
corpus delicti;
it is like the fact of death in a homicide case, which, as is said in
People
v.
Simonsen, supra,
does not establish the
corpus delicti,
but only the corpus, The second essential elements, that is, the criminal agency from which the infection resulted, was supplied wholly by the statements of the defendant testified to by the parents of the child.
Shorn of the statements, admissions, and confession of the accused and his disappearance and flight—which can avail no more than his admissions to establish the
corpus delicti,
being but a circumstance tending to connect the defendant with the commission of the crime and to authorize the inference of guilt, the
corpus delicti
being proven
(State
v.
Poe,
123 Iowa, 118 [101 Am. St. Rep. 307, 98 N. W. 587]; 8 R. C. L. 192)—there remains only suspicion and opportunity. If opportunity be held to be sufficient to establish the fact that a crime has been committed, but few would be immune from prosecution and the indignity of being forced to make a defense in a criminal court.
It is my opinion that the case should be reversed for lack of proof of the
corpus delicti.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 25, 1927.