State v. Paris, 7828

• Docket Nº: No. 7828
• Citation: 1966 NMSC 39, 76 N.M. 291, 414 P.2d 512
• Case Date: March 07, 1966
• Court: Supreme Court of New Mexico

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.

[76 N.M. 293]

Page 513

Frazier, Cusack & Schnedar, Roswell, for appellant.

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

Page 514

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 [76 N.M. 294] 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 [76 N.M. 295]

Page 515

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, compare State 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...