Gallegos v. State, 32781

• Decision Date: 15 June 1950
• Docket Number: No. 32781,32781
• Citation: 43 N.W.2d 1,152 Neb. 831
• Parties: GALLEGOS v. STATE.
• Court: Nebraska Supreme Court

Page 1

43 N.W.2d 1

152 Neb. 831

GALLEGOS v. STATE.

No. 32781.

Supreme Court of Nebraska.

June 15, 1950.

Syllabus by the Court.

1. Corpus delicti is composed of two elements, the fact or result forming the basis of the charge and the existence of a

criminal agency as the cause thereof. Homicide corpus delicti is not established until it is proved that a human being is dead, and the death occurred as the result of the criminal agency of another.

2. A conviction for felony will not be sustained when the only evidence of guilt is the extrajudicial confession of the defendant that a crime has been committed.

3. While a voluntary confession is insufficient, standing alone, to prove that a crime has been committed, it is, nevertheless, competent evidence of that fact, and may, with slight corroborative circumstances, establish the corpus delicti as well as the defendant's guilty participation.

4. In laying a foundation in a criminal case for the admission of a confession in evidence, it is sufficient to establish affirmatively all that occurred immediately prior to and at the time of making the confession, provided such affirmative proof shows it to have been freely and voluntarily made and excludes the hypothesis of improper inducements or threats.

5. The question of whether or not in the first instance the State has laid a proper and sufficient foundation for the admission of such eidence is one of law for the court, and if the court determines as a matter of law that no sufficient foundation has been laid then the confession should be rejected, but where the confession is received in evidence, its voluntary character is still a question of fact to be determined by the jury.

Mothersead, Wright & Simmons, Scottsbluff, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Homer L. Kyle, Asst. Atty. Gen., for defendant in error.

Heard before CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

A jury in the district court for Scotts Bluff County found the defendant, Agapita Gallegos, guilty of manslaughter. His motion for a new trial was overruled and he was sentenced to seve ten years in the penitentiary. To review the record of his conviction and sentence the defendant has instituted this error proceeding.

For convenience we shall refer to the plaintiff in error as the defendant.

Defendant contends that the corus delicti, which means that a crime has actually been committed, has not been established. Corpus delicti is composed of two elements, the fact or result forming the basis of the charge and the existence of a criminal agency as the cause thereof. 23 C.J.S., Criminal Law, § 916, p. 181. 'Homicide corpus delicti is not established until it is proved that a human being is dead, and the death occurred as the result of the criminal agency of another.' Reyes v. State, 151 Neb. 636, 38 N.W.2d 539, 544.

The confessions of the defendant, the first on September 23, 1949, and the second on October 1, 1949, fully detail the crime and its commission. Defendant therein confessed that in the early part of October 1948, while Mrs. Genovesa Carillo was living with him and his two children in a tenant house located on a farm near Minatare in Scotts Bluff County, Nebraska, he got into an argument with her; that the argument started while they were getting ready to retire; that while arguing he picked up a piece of stove wood; that he hit her with this piece of wood, the blow being on the head and just behind the left ear; that when struck she fell to the floor in a sort of dazed condition but continued to talk; that while she was on the floor he hit her twice with the same piece of wood and in about the same place; that some blood flowed from her head and formed a spot on the floor; that she died from the blows; that this all took place in the east room of the two-room tenant house in which they were living; that he buried her the next day, just after dark, at a point east of the tenant house; that he dug the grave north and south, placing her with her head to the north; that he wrapped her body in a blanket and placed a handkerchief in her mouth to keep the dirt from getting in; and that she had on one of his overalls and a lady's shirt, but no shoes.

We said in Sullivan v. State, 58 Neb. 796, 79 N.W. 721, 722, that: 'The uniform doctrine of the American courts is that a conviction for felony will not be sustained when the only evidence of guilt is the extrajudicial confession of the defendant that a crime has been committed. His confession may be sufficient to prove his own connection with the alleged criminal act, but there must in all cases be proof aliunde of the essential facts constituting the crime.'

As stated in 23 C.J.S., Criminal Law, § 916, p. 182: 'The corpus delicti cannot be presumed, but must be established by evidence sufficient to show the commission of a crime. Extrajudicial admissions or confessions of the accused are not alone sufficient to establish the corpus delicti, but ordinarily may be considered in connection with other evidence in the establishment thereof.'

See, also, Cryderman v. State, 101 Neb. 85, 161 N.W. 1045; Egbert v. State, 113 Neb. 790, 205 N.W. 252; Limmerick v. State, 120 Neb. 558, 234 N.W. 98; Whomble v. State, 143 Neb. 667, 10 N.W.2d 627; Clark v. State, 151 Neb. 348, 37 N.W.2d 601; Reyes v. State, supra.

However, as stated in 23 C.J.S., Criminal Law, § 916, p. 184: '* * * although there is authority which holds that the corpus delicti must be established by independent evidence alone and the extrajudicial statements, admissions, or confession of accused cannot be used in aid of the establishment of any necessary element thereof, as a general rule it is not required that the corpus delicti shall be established by independent evidence alone. Extrajudicial admissions, declarations, or confessions of accused may be considered in connection with other independent evidence in determining whether the corpus delicti is sufficiently proved; and it is sufficient when the evidence independent of the confession, together with the confession, establishes the corpus delicti. It is not required that the suppletory evidence be conclusive in its character; and slighter evidence of the corpus delicti is sufficient for its establishment where the commission of the crime has been confessed by accused; but it is necessary that there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce a conviction of guilt.'

That we have followed this general rule is evidenced by many holdings of this court. After stating the foregoing, quoted from Sullivan v. State, supra, the court therein went on to say: 'But, while a voluntary confession is insufficient, standing alone, to prove that a crime has been committed, it is, nevertheless, competent evidence of that fact, and may, with slight corroborative circumstances, establish the corpus delicti, as well as the defendant's guilty participation. Discussing this question, Nelson, C. J., in People v. Badgley, 16 Wend., N.Y., 53, said: 'Full proof 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.' The doctrine of this case was distinctly approved in People v. Jaehne, 103 N.Y. 182, 8 N.E. 374, where it was held that equivocal circumstance offered as proof of the corpus delicti might be interpreted in the light of the prisoner's confession, and the fact under investigation be thus given a criminal aspect. In State v. Hall, 31 W.Va. 505, 7 S.E. 422, the court, considering this question, said: 'We know of no decisions anywhere that hold the admissions of the defendant are not competent evidence tending to prove the corpus delicti, but they certainly are competent evidence tending to prove that the crime charged has been committed.' It has often been held in cases where there was no direct proof of the crime, as in prosecutions for adultery and trials for homicide, where the body of the deceased had not been found, that the defendant's extrajudicial confession, in connection with other incriminating circumstances would warrant a conviction. Ryan v. State, 100 Ala. 94, 14 So. 868; State v. Lamb, 28 Mo. 218; State v. Patterson, 73 Mo. 695; Commonwealth v. McCann, 97 Mass. 580; United States v. Williams, [28 Fed.Cas. page 637, No. 16,707], 1 Cliff. 5, 20; United States v. Gibert, [25 Fed.Cas. page 1287, No. 15,204], 2 Sumn. 19; Commonwealth v. Tarr, 4 Allen, Mass. 315.'

'The rule that the corpus delicti cannot be proved by the confession of the defendant is true as a general proposition, yet confessins or admissions may be considered in connection with the other evidence to establish the corpus delicti. It is not necessary to prove the corpus delicti by evidence entirely independent and exclusive of the confession or admissions. Groover v. State, 82 Fla. 427, 90 So. 473, 26 A.L.R. 380; 17 R.C.L. 64, § 69.' Limmerick v. State, supra [120 Neb. 558, 234 N.W. 99].

This principle has often been reaffirmed by this court. See, Egbert v. State, supra; Whomble v. State, supra; Clark v. State, supra.

Other than the confessions there is evidence that defendant, an illiterate Mexican beet field worker about 38 years of age, returned to Nebraska from Mexico shortly after Christmas 1947; that he had with him at that time his son, about 10 years of age, his daughter, about 13 years of age, and a Mexican woman between 35 and 40 years of age by the name of Mrs. Genovesa Carrillo, who he held out as his wife; that in April 1948 he obtained employment with a farmer by the name of Carl Mowry who lived about 15 miles northeast of Scottsbluff and moved into a tenant house on...