from Ruloff's house. No person shows that either of them have been seen since. The next day Ruloff borrowed a wagon from a neighbor and took into it a box from his own house, which the neighbor helped him to place in the wagon; he drove off with it-where, is not shown; on the following day he returned with the wagon and box. It was shown that he had in his possession a ring which his wife had worn on the twenty-fourth, and a shawl and some other articles of her apparel; that he told stories as to her being at sundry places where she was proved not to have been, and generally conducted himself in such a way as to lead strongly to the inference that he was the author of whatever had happened to his wife and child, if anything had, in fact, happened to them. In the house clothes were found lying about in disorder, dishes unwashed, a skirt lying in a circle at the foot of the bed, and shoes, stockings, and diapers. It was sworn that Ruloff had a cast-iron mortar of twentyfive or thirty pounds weight, and flat irons, which on searching the house were not found. He absconded and was in Chicago early in August, under a false name; there said his wife and child had died six weeks before on the Illinois river, in Illinois, and left a box containing books, papers and articles of woman's apparel, which had belonged to Mrs. Ruloff, a paper on which were the words, "Oh, that dreadful hour!" and a lock of light brown hair in another paper, labeled "A lock of Harriet's [or Mary's] hair;" the witness thought the word was "Harriet's.' At the close of the evidence the prisoner's counsel renewed his motion, made at the opening of the cause, and insisted that, as it now appeared that no direct evidence of the death or the murder of the infant daughter had been given, no conviction for murder could be properly had or allowed, and that the jury should be so advised and instructed, and should be directed to find a verdict of not guilty. The judge refused so to advise, direct, and instruct the jury, and to his refusal the prisoner's counsel excepted. The judge then charged the jury. After explaining the legal definition of murder, and the legal presumption of innocence. in favor of the prisoner, and the duty of the prosecution, before they could rightfully ask a conviction, not only to prove the alleged murder, but also to establish by evidence the guilt of the prisoner beyond any reasonable doubt, he proceeded as follows: "The first branch of the case, the corpus delicti, as it is termed in the law, by which is meant the body of the crime, the fact that a murder has been committed, must be clearly and conclusively proved by the government. The corpus delicti is made up of two things: 1, of certain facts forming the basis of the corpus delicti, by which is meant the fact that a human being has been killed; and, 2, the existence of criminal and human agency as the cause of the death. Upon this first branch of the case the prisoner's counsel insists that it can only be proved by direct and positive evidence; that the government must prove the fact of death by witnesses who saw the killing, or at least the dead body must be found. It has been said

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by some judges, that a conviction for murder ought never to be permitted unless the killing was positively sworn to, or the dead body was found and identified. This, as a general proposition, is undoubtedly correct, but, like other general rules, has its exceptions. It may sometimes happen that the dead body cannot be produced, although the proof of death is clear and satisfactory. A strong case in illustration is that of a murder at sea, where the body is thrown overboard in a dark and stormy night, at a great distance from land or any vessel. I am of opinion that the rule, as understood in this country, does not require the fact of death to be proved by positive and direct evidence in cases where the discovery of the body, after the crime, is impossible. In such cases the fact may be established by circumstances, where the evidence is so strong and intense as to produce the full certainty of death." [Defendant excepted.J The question presented to us, therefore, is whether there be a rule of law, in respect to the proof in cases of homicide, which does not permit a conviction without direct proof of the death, or of the violence or other act of the defendant which is alleged to have produced death. If it be objected that such a rule may compel the acquittal of one whom the jury are satisfied is guilty, the answer is, that the rule, if it exists, must be regarded as part of the humane policy of the common law, which affirms that it is better that many guilty should escape than that one innocent should suffer; and that it may have its probable foundation in the idea that where direct proof is absent as to both the fact of death and of criminal violence capable of producing death, no evidence can rise to the degree of moral certainty that the individual is dead by criminal intervention, or even lead by direct inference to those results; and that where the fact of death is not certainly ascertained, all mere inculpatory moral evidence wants the key necessary for its satisfactory interpretation, and cannot be depended on to furnish more than probable results. It may be, also, that such a rule has some reference to the dangerous possibility that a general preconception of guilt, or a general excitement of popular feeling, may creep in to supply the place of evidence, if, upon other than direct proof of death or a cause of death, a jury are to be permitted, upon whatever evidence may be presented to them, competent on any part of the case, to pronounce a defendant guilty. A great deal of strong general language has been used by judges in respect to the power of circumstantial evidence to afford sufficient ground to warrant convictions, and many instances of this have been cited and are relied on by the prosecution. Most of those expressions have been used, in answer to the position that circumstantial evidence ought not to be relied on to prove any part of the case for the prosecution. But I have not found any case in which a judge, speaking directly to the point here involved, has said that without direct evidence on either branch of the corpus delicti a conviction for murder could be allowed. * The rule is not founded in:

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a denial of the force of circumstantial evidence, but in the danger of allowing any but unequivocal and certain proof that some one is dead to be the ground on which, by the interpretation of circumstances of suspicion, an accused person is to be convicted of murder. We are of opinion that the judge, at the trial, erred, and that he should have directed an acquittal. Roosevelt, J., dissented. Judgment reversed and new trial ordered. Ruloff v. P., 18 N. Y. 179, Kn. 124.

(N. Y. Ct. of App., 1888.) A Body Washed Ashore. FINCH, J. The prisoner was convicted of murder in the second degree, and that conviction reversed by the general term because there was no direct evidence which identified the body found as that of the person alleged to have been murdered. From that decision the people appeal. The question is a very grave one, not merely for the prisoner, whose liberty may depend upon the issue, but for the people and the administration of public justice; for, if the law be as the general term have declared it, a murderer may always escape if only he shall so mutilate the body of his victim as to make identification by direct evidence impossible, or shall so effectually conceal it that discovery is delayed until decomposition has taken away the possibility of personal recognition; and it will follow that the tenderness of the Penal Code has opened a door of escape to that brutal courage which can mangle and burn the lifeless body, and has put a premium upon and offered a reward for that species of atrocity. This result is said to have been accomplished by § 181, which prohibits a conviction "unless the death of the person alleged to have been killed, and the fact of the killing by the defendant as alleged, are each established as independent facts; the former by direct proof, and the latter beyond a reasonable doubt." In the first clause of this provision the endeavor to state and describe one fact has involved the statement of another, changing a simple into a compound fact, and making it possible to apply the requirement of direct proof to the two facts of death and identity, rather than to the one fact of death alone. That someone is dead is directly proved whenever a dead body is found. Its identity as that of the person alleged to have been killed is a further fact, to be established in the process of investigation. It has always been the rule, since the time of Lord Hale, that the corpus delicti should be proved by direct, or at least by certain and unequivocal evidence. But it never was the doctrine of the common law, that when the corpus delicti had been duly established, the further proof of the identity of the deceased person should be of the same direct quality and character. And this becomes quite evident from a consideration of the history and philosophy of the rule. By the corpus delicti— the body and substance of the offense-has always been meant the existence of a criminal fact. Unless such a fact exists there is nothing to investigate. Until it is proved, inquiry has no point upon

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which it can concentrate. Indeed, there is nothing to inquire about. * I am persuaded that a careful analysis of the section referred to will show that no such change, so radical and dangerous, was either made or intended, and that the sole scope and purpose of the section was to declare in explicit terms the existing rule of the common law. [Here his honor analyzed the statute.] The trial judge, therefore, was right, and the general term was in error. We have read the evidence given carefully. That the body found. was that of Peter Bernard was established beyond a reasonable doubt. The prisoner was a witness in his own behalf. He shows that he and Bernard were in the locality where the body was found, at about the date of the latter's disappearance. His own declarations show that he had no doubt of the identity of the body found. He explains his possession of a $20 bill, which in some manner he got from Bernard, but the explanation is not at all probable or satisfactory. The evidence of the persons who claim to have seen the deceased after the date of the murder was probably honest, but quite certainly mistaken. He was a total stranger to them, and their comparison was founded on a photograph. In the case of C. v. Webster [above] there were five persons who honestly believed that they saw Parkman alive after he had in fact been killed. Upon the whole case we see no reason to distrust the conclusion which the jury reached. The judgment of the general term should be reversed, and that of the oyer and terminer of Clinton county affirmed. All concur, except Gray, J., dissenting. P. v. Palmer, 109 N. Y. 110, 16 N. E. 529, 4 Am. St. Rep. 423, reversing same case in 46 Hun. 479.

§ 109. Burglary Defined. Burglary at common law is the breaking and entering of the dwelling house of another in the night-time, with intent to commit a felony therein.

§ 110. "Breaking."

(Eng. Assize, 1664.) This happened in Blackfriars, 1664, where thieves, pretending that A harbored a traitor, called the constable to go with them to apprehend him, and the constable entering, they bound the constable and robbed A, and were executed for burglary, and yet the owner opened the doors of his own accord to the constable. Anon, 1 Hale P. C. 553, Crompton 22a.

Acc. Farr's Case, § 133, p. 425.

Of Breaking Out. By 12 Anne, c. 7, § 3, it is enacted, "that if any person shall enter into the mansion or dwelling-house of another, by day or by night, without breaking the same, with an intent to commit felony, or, being in such house, shall commit any felony, and shall in the night-time break the said house to get out of the same, such person is and shall be adjudged and taken to be guilty of burglary, and shall be ousted of the benefit of his and her clergy, in the same manner as if such person had broken and entered the said house in the night-time with an intent to commit felony there."