committed; and, second, that the accused is the author, or one of the authors of it;" and, the learned writer adds: "The identification of the body of the deceased need not be proved by witnesses, who, by an actual inspection of the body, recognize it as the body of the person with whose murder the prisoner is charged; but it may be by the same class of proof as is used to identify the prisoner on trial, or any other material facts. . . Indeed, it may be said that any proof that satisfies the jury that the body is that of the deceased is sufficient, as fragments of the clothing identified as similar to that worn by the deceased when last seen alive." 1 Starkie on Evidence, p. 575, defines the corpus delicti as "the fact that the crime has been actually perpetrated," and 3 Greenleaf on Evidence, § 131, as "the fact that a murder has been committed," and adds that the rule requires "unequivocal and certain proof that someone is dead." All these cases and authors hold, without exception, that until a criminal fact has been established, "antequam de crimine constiterit," there can be no basis for presumptive proof, but when, in a case of murder, that basis has been certainly supplied, the identity of the victim and the agency of the prisoner may be shown by circumstances.

So far as I have been able to discover, that rule has always been recognized and applied in this country. A few of the more remarkable cases may be studied to demonstrate its wide prevalence. In People v. Wilson, 3 Park. Crim. Rep. 199, it appeared that a dead body, with marks of violence upon it, had been washed ashore. It was alleged to have been the body of Captain Palmer for whose murder the prisoner was being tried. No direct evidence of that identity was or could be given. But the criminal fact of a death, by violence, having been fully established, the identity of the remains was proved by circumstances. Personal recognition had become impossible, and identity was established. by an inference from resemblances. The height of deceased was shown, an unusual length of face, and a widening of the end of the little finger, to which, in a general way, the body corresponded. But a more important fact was that the captain had imprinted his name upon his leg and arm, and in the same portions of the body found the skin had been cut away, except that on the leg the letter P remained visible. A brother-in-law of deceased, who had seen the body, was asked the direct question, whose body it was; but the court would not permit an answer;

saying that the question was not the ordinary one of personal identity, since the body had been submerged for five months, but was one of an inference from resemblances, which the jury and not the witness must draw. The prisoner was convicted. In Com. v. Webster, 5 Cush. 295, the identification stood mainly upon a block of teeth found in the furnace where part of the body was consumed. There was no direct recognition of the body by any one, but the circumstantial evidence was very strong. I do not see how the identification of the false teeth can be deemed direct evidence of the identity of the remains. It was a fact from which that identity could be inferred, and the inference be very strong, but the conclusion would still be an inference. If Dr. Keep, the dentist, after examining the teeth, had been asked the direct question whether the mutilated remains were those of the deceased, he could only have answered in the affirmative, as a judgment founded upon a process of reasoning. False teeth are artificial and not natural. They may be worn at one time and omitted at another. They may be lost from the mouth and pass into a stranger's possession. If their identity as found among the remains directly identified the body, why did not in the present case the proved identity of the boot found on the foot of the body discovered directly identify that body? Is not the difference rather one of the degree than of the kind of proof? But in both cases I think the evidence was inferential, and cannot justly be regarded as direct. In Taylor v. State, 35 Tex. 97, there was no direct proof of the identity of the deceased, but his clothing, hat and papers were identified, and his wagon and team and even his dog were found in the prisoner's possession. A still more remarkable case was that of State v. Williams, 52 N. C. 446, where with the bones were found some trifling articles of feminine attire, seemingly insufficient to justify an inference of identity.

§ 298. Recent Legislation on the Subject.-The well recognized rules as to corpus delicti have assumed a statutory form in the state of New York, and the Penal Code after defining homicide to be the killing of one human being by the act, procurement or omission of another, and declaring the crime to classify under the head of either (1) murder; (2) manslaughter; (3) excusable homicide; or (4) justifiable homicide, proceeds with the declaration that, "no person shall be convicted of manslaughter or murder unless the death of the person alleged to have been killed

and the fact of killing by the defendant, as alleged, are each established as independent facts; the former by direct proof and the latter beyond a reasonable doubt." New York Penal Code, S$ 179-181.

In construing a statute everything in favor of the liberty and the security of the citizen and the protection of the individual is to be liberally and comprehensively interpreted. Potter's Dwarr. Statutes, 49; Lieber, Hermeneutics [16th ed. 1880], chap. 5, § 134; People v. Kelly, 24 N. Y. 74, 81, 82; Boyd v. United States, 116 U. S. 616, 29 L. ed. 746.

"By the corpus delicti, the body or 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 which it can concentrate. Indeed, there is nothing to inquire about. But, when a criminal fact is discovered, its existence, for the purpose of a judicial investigation, must be established fully, completely, by the most clear and decisive evidence. For otherwise the after reasoning founded upon it and drawing its force from it will be dangerous, fallacious, and unreliable. As the weakness of the foundation is more and more intensified, while the superstructure ascends and the weight grows, so the circumstantial evidence built upon a criminal fact, not certain to have existed, becomes itself weak and indecisive, and more and more so as the suspicions expand and extend. If somebody has been murdered a motive for a murder becomes a significant fact, rendered more so when identification shows it a motive for the particular murder. But if the death is doubtful the probative force of a motive dwindles to mere suspicion." People v. Palmer, 109 N. Y. 113.

The provision of the Penal Code in the section above referred to, which prohibits a conviction "of murder or manslaughter, unless the death of the person alleged to have been killed, and the fact of killing as alleged, are each established as independent facts; the former by direct proof and the latter beyond a reasonable doubt," does not require direct proof of the identity of the victim, but only of the death. Identity is not included in the corpus delicti, and is left open to indirect or circumstantial evidence. An intention to change the rule of the common law will not be presumed from doubtful statutory provisions; the presumption is that no such change was intended unless the statute is explicit and clear in that direction. People v. Palmer, supra.

A confession is no evidence of the corpus delicti, but only of the connection of the defendant with the crime; the corpus delicti is a substantive independent fact in the case, to be proved as if defendant were not a party to the cause, and so his unsworn statement is no more evidence of the corpus delicti than the hearsay statement of any other person. State v. Guild, 10 N. J. L. 193; State v. Dubois, 54 Iowa, 363; May v. State, 92 Ill. 343. Circumstantial evidence should be acted upon with great caution, especially where the public anxiety for the detection of a great crime creates an unusual tendency to exaggerate facts and draw rash inferences. Pitts v. State, 43 Miss. 472. All that the law requires is that the corpus delicti shall be proved, as any other fact, that is, beyond a reasonable doubt, and that doubt is for the jury. Gray v. Com. 101 Pa. 386, 47 Am. Rep. 733; Priest v. State, 10 Neb. 393; United States v. Searcey, 26 Fed. Rep. 435; People v. Porter, 2 Park. Crim. Rep. 14; Hope's Case, 1 City Hall Rec. 150; People v. Badgley, 16 Wend. 53; People v. McGloin, 91 N. Y. 242, Bishop, Crim. L. § 1071.

The corroborative evidence must go to prove the entire crime, and not only one or more of its constituent elements; and proof of one element is no proof of another. People v. Plath, 100 N. Y. 590. The quantum of evidence, aliunde the confession, sufficient to convict, is not the same as suffices to corroborate an accomplice under section 399 of the Criminal Code, or a female under sections 283 and 286 of the Penal Code. People v. Plath, supra; People v. Williams, 1 N. Y. Crim. Rep. 344; Frazer v. People, 54 Barb. 310. In determining a question of fact from circumstantial evidence, the hypothesis of guilt should flow naturally from the facts proved and be consistent with them all; and the evidence must be such as to exclude, to a moral certainty, every hypothesis but that of guilt of the offense imputed. People v. Bennett, 49 N. Y. 137; People v. Stokes, 2 N. Y. Crim. Rep. 382; People v. Kennedy, 32 N. Y. 145, Lawson, Presumptions, 569; Evans v. Evans, 1 Hagg. Const. 105. If the facts be consistent with innocence, they are no proof of guilt. Ormsby v. People, 53 N. Y. 475; People v. Courtney, 28 Hun, 593; Frazer v. People, 54 Barb. 309; Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 491; Port v. Port, 70 Ill. 484; Mason v. State, 32 Ark. 239; Carroll v. Quinn, 13 Md. 379; Greenwood v. Lowe, 7 La. Ann. 197; United States v. The Burdett, 34 U. S. 9 Pet. 682, 9 L. ed. 273.

"It is insisted that under the statute the corpus delicti must be proved, or evidence given tending to prove it, wholly independent of the confession, and that no evidence was given, which, disconnected with the confessions, had a legal tendency to prove the body of the crime. It would be a sufficient answer to this point that it is not raised by any exception on the trial, and it clearly was not raised by the exception to the denial of a motion for a new trial, made after verdict. But we are of opinion that when, in addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a non-compliance with the requirement of the statute. The words of the statute, additional proof that the crime charged has been committed,' seem to imply that the confession is to be treated as evidence of the corpus delicti, that is, not only of the subjective criminal act but also the criminal agency of the defendant; in other words, as competent proof of the body of the crime, though insufficient without corroboration to warrant a conviction. Full proof,' said Nelson, Ch. J., in People v. Badgley, 16 Wend. 53, 'of the body of the crime, the corpus delicti, independently of the confession is not required by any of the cases, and in many of them slight corroborating facts were held sufficient.' We are of opinion that there was evidence in addition to the confession, which constituted 'additional proof' within the statute." People v. Jaehne, 103 N. Y. 182.

That I have correctly stated what is meant by the corpus delicti, requiring direct proof, and that it never did include the identity of the victim, but left that open to indirect, or circumstantial evidence, is shown by an unbroken and unvarying concurrence of authority.

In People v. Videto, 1 Park. Crim. Rep. 609, Walworth, Ch. J., says: "One rule however, which ought never to be departed from is, that no one should be convicted of murder upon circumstantial evidence, unless the body of the person supposed to have been murdered has been found, or there be other clear and irresistible proof that such person is actually dead."

It does not appear that this direction was material on that trial, and it is cited only to show how constantly the doctrine has been received as clear and undisputed law.