State v. Paris

• Decision Date: 07 March 1966
• Docket Number: No. 7828,7828
• Citation: 1966 NMSC 39,76 N.M. 291,414 P.2d 512
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Carroll Wayne PARIS, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 512

414 P.2d 512

76 N.M. 291

STATE of New Mexico, Plaintiff-Appellee, v.Carroll Wayne PARIS, Defendant-Appellant.

No. 7828.

Supreme Court of New Mexico.

March 7, 1966.

On Rehearing May 16, 1966.

Frazier, Cusack & Schnedar, Roswell, for appellant.

Boston E. Witt, Atty. Gen., Frank Bachicha, Jr., Roy G. Hill, Asst. Attys.Gen., Santa Fe, for appellee.

CARMODY, Chief Justice.

Defendant appeals from judgment and sentence following his conviction by a jury of the crime of larceny.

The first contention is that the court erred in admitting defendant's confession because the corpus delicti of the crime of larceny had not been established independent of the confession.The state on the other hand contends that the extrajudicial confession may be considered in aid of the independent evidence to establish the corpus delicti, and even if not, the corpus delicti was proved here by circumstantial evidence.

The corpus delicti of larceny is constituted of two elements: that the property was lost by the owner, and that it was lost by a felonious taking.State v. Cason, 1917, 23 N.M. 77, 167 P. 283;State v. McKenzie, 1943, 47 N.M. 449, 144 P.2d 161;Brown v. Village of Deming, 1952, 56 N.M. 302, 243 P.2d 609.It is well settled that the corpus delicti of a crime may be proved by circumstantial evidence.State v. Sakariason, 1915, 21 N.M. 207, 153 P. 1034;State v. Chaves, 1921, 27 N.M. 504, 202 P. 694;State v. Ortega, 1932, 36 N.M. 57, 7 P.2d 943.On the question of whether evidence is substantial to establish the corpus delicti, each case must, of course, turn on its own facts.State v. Craig, 1922, 28 N.M. 110, 206 P. 513.

In this case there was evidence that on Saturday, March 16th, money belonging to Mrs. Norma Pritchard, owner of Norma's Delicatessen in Roswell, was placed into a money bag for a bank deposit.Mrs. Pritchard testified that the deposit was to be placed into a steel file by an employee, Mrs. Luke, who was not available to testify at the trial.Defendant had begun work at the delicatessen Friday, March 15th.Mrs. Pritchard authorized no one to remove the money.Defendant, at one o'clock Sunday afternoon, March 17th, picked up a key from Mrs. Pritchard to clean the delicatessen, and returned the key at four o'clock, telling Mrs. Pritchard that he would see her the next day.The next morning Mrs. Pritchard went to the delicatessen and discovered that the money was not in the money bags.Defendant did not return to work that day or thereafter.

An examination of the New Mexico cases in which circumstantial evidence was sufficient to establish the corpus delicti of larceny where loss by the owner was established shows that some element of subsequent possession in the defendant of the stolen property was present.See, e.g., State v. Ortega, supra;State v. Liston, 1921, 27 N.M. 500, 202 P. 696;State v. Cason, supra.In the present case, no possession was ever shown in defendant.There was only a loss by the owner and access and unexplained disappearance of defendant; the corpus delicti was not established here by circumstantial evidence.The state claims, however, that defendant's extrajudicial confession may be considered in aid of the independent evidence to establish the corpus delicti, and that it was therefore properly admitted by the trial court.

It is clear that, unless the corpus delicti of the offense charged has been otherwise established, a conviction cannot be sustained solely on extrajudicial confessions or admissions of the accused.State v. LaRue, 1960, 67 N.M. 149, 353 P.2d 367;State v. Carter, 1954, 58 N.M. 713, 275 P.2d 847;State v. Dena, 1923, 28 N.M. 479, 214 P. 583.We see nothing in State v. Lindemuth, 1952, 56 N.M. 257, 243 P.2d 325, or in any of the cited cases to indicate that under certain circumstances a confession may not be utilized to assist in establishing corpus delicti.In Dena a judicial statement was held proper for this purpose.In LaRue and Carter where the statements were a part of the res gestae they were also held proper for consideration in establishing the corpus delicti.

The question, then calls for consideration of the proposition whether the confession of an accused, not a part of the res gestae, may be admitted or used in any respect to support a conviction unless each of the elements of the corpus delicti is proved by independent evidence.Though the question is one of first impression in this state, it has been considered by a great number of other jurisdictions, see annotation 45 A.L.R.2d 1316, 1333, with the apparent general consensus that the confession may be considered without independent proof of each element of the corpus delicti, provided it is sufficiently corroborated.See, e.g., People v. McMonigle, 1947, 29 Cal.2d 730, 177 P.2d 745;Martinez v. People, 1954, 129 Colo. 94, 267 P.2d 654;State v. Doucette, 1959, 147 Conn. 95, 157 A.2d 487;Nelson v. State, 1954, 11 Terry 96, 50 Del. 96, 123 A.2d 859;State v. Yoshida, 1960, 44 Hawaii 352, 354 P.2d 986;State v. Bates, 1955, 76 S.D. 23, 71 N.W.2d 641.

It is with regard to the extent of corroborative evidence necessary, particularly concerning its relation to the corpus delicti, that there is wide diversity among jurisdictions.Some, for instance, have required that the independent evidence establish prima facie proof of the corpus delicti, People v. McMonigle, supra; some that the independent evidence must 'tend to establish that the crime charged has been committed and must be material and substantial, but need not be such as would establish the corpus delicti beyond a reasonable doubt,'State v. Doucette, supra; some that the confession be corroborated by 'other evidence,'Martinez v. People, supra; still others require no specific measure at all, provided that all evidence taken together proves the corpus delicti beyond a reasonable doubt, Nelson v. State, supra.Still others refer to what corroborative evidence need not be, see annotations 45 A.L.R.2d 1316.From the welter of cases and the range of their holdings, it would be imprudent to say that one particular hair-splitting formula has the support of a majority, compareState v. Yoshida, supra.This is particularly true when we consider that each case must turn on its own facts and circumstances.

We feel that the proper rule, and the most workable, is that laid down for the federal courts in Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101, 45 A.L.R.2d 1308, where the court held that corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti, but that the Government must introduce substantial independent evidence which would tend to establish the trustworthiness of the statement.The Supreme Court said:

'Thus, the independent evidence serves a dual function.It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense.* * * It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.'(Emphasis added.)

Of course, the confession or admitted facts, taken together with all the other evidence, must be sufficient to find guilt, Opper v. United States, supra, and prove all elements of the corpus delicti, Smith v. United States, 1954, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192, beyond a reasonable doubt.

Cases which have applied the Opper standard include Matula v. United States(10th Cir.1964)327 F.2d 337;Martinez v. United States(10th Cir.1961)295 F.2d 426;Landsdown v. United States(5th Cir.1965)348 F.2d 405;United States v. Waller(4th Cir.1963)326 F.2d 314, cert. denied377 U.S. 946, 84 S.Ct. 1355, 12 L.Ed.2d 309;State v. Yoshida, supra;People v. Cuevas, 1955, 131 Cal.App.2d 393, 280 P.2d 831;compareState v. Whittemore, 1961, 255 N.C. 583, 122 S.E.2d 396, andState v. Lucas, 1959, 30 N.J. 37, 152 A.2d 50, where the court said:

'Confessions, like other admissions against interest, stand high in the probative hierarchy of proof.It is for this reason that the law imposes various safeguards designed to assure that the confession is true.But safeguards for the accused should not be turned into obstacles whereby the guilty can escape just punishment.No greater burden should be required of the State than independent corroborative proof tending to establish that when the defendant confessed he was telling the truth, plus independent proof of the loss or injury.'

In this case, the defendant's statement was corroborated by Mrs. Pritchard's testimony concerning the length of his employment (the same three days admitted by defendant), Mrs. Pritchard's testimony that she gave defendant a key on Sunday which he was to use to open the delicatessen for cleaning, and that defendant returned the key to her.Defendant admitted that he had found the money in the filing cabinet where Mrs. Pritchard testified it was to be placed the previous day, and that he, defendant, 'took it out three times and put it back and just before leaving I took it out and kept it.'

We think the corroborative evidence, when considered together with the confession, justified the conclusion that the crime charged had been committed, and that the trial court did not commit error in admitting the statement.

Defendant next argues that the court erroneously instructed the jury as to the elements of the offense of larceny omitting the element of unlawful taking.The pertinent part of the court's instruction No. 5 was as follows:

'The material allegations contained in the information which must be proved to your satisfaction and beyond a reasonable doubt by the evidence introduced in this case, are:

'(A) that Carrol Wayne Paris stole property belonging to Mrs. Norma Pritchard;

'* * *.'

Defendant was charged under § 40--45--2, N.M.S.A., 1953 Comp., which states: 'Every person who shall commit the crime of larceny, by stealing of...