State v. Sogge

• Citation: 36 N.D. 262,161 N.W. 1022
• Parties: STATE v. SOGGE et al.
• Decision Date: 02 April 1917
• Court: North Dakota Supreme Court

36 N.D. 262

161 N.W. 1022

STATE

v.SOGGE et al.

Supreme Court of North Dakota.

April 2, 1917.

Syllabus by the Court.

The expression “corpus delicti,” as understood in cases of homicide, means the body of the crime, and consists of two component parts, the first of which is the death of the person alleged to have been killed, and the second, that such death was caused through criminal agency.

Section 9459, Compiled Laws of 1913, which provides that no person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of the killing are each established as independent facts-the former by direct proof and the latter beyond a reasonable doubt-construed, and held, that the Legislature used the words “direct proof” as the equivalent of, and a synonym for, “direct evidence.”

Evidence examined, and held, that the court cannot say as a matter of law that the corpus delicti has not been established.

It is held, for reasons stated in the opinion, that the giving of the following instruction constituted prejudicial error: “Circumstantial evidence alone is enough to support the verdict of guilty of any crime, providing the jury believe beyond a reasonable doubt that the accused is guilty under the evidence. No greater degree of certainty in proof is required where the evidence is all circumstantial than where it is direct, for in either case the jury must be convinced of the prisoner's guilt beyond a reasonable doubt. The evidence of circumstances is to be taken by you the same as evidence of direct and positive acts. It is to be received by you in the light of reason-in the light of actual results. All evidence is more or less circumstantial; all statements of witnesses, all conclusions of jurors, are the results of inference. There is no ground of distinction between circumstantial and direct evidence.”

Appeal from District Court, Towner County; C. W. Buttz, Judge.

Rognhild Sogge, Elmer Jones, and Betsy Jones were jointly charged with murder, and Sogge and Elmer Jones were convicted of manslaughter in the first degree, and Betsy Jones was convicted of manslaughter in the second degree, their motion for a new trial was denied, and from the order and the judgment of conviction, they appeal. Reversed and remanded for a new trial.Torger Sinness and Clyde Duffy, both of Minnewaukan, and Victor Wardrope, of Leeds, for appellants. T. H. Burke, State's Atty., of Minnewaukan, E. T. Burke, of Bismarck, Wm. Langer, Atty. Gen., and D. V. Brennan, Asst. Atty. Gen, for the State.

CHRISTIANSON, J.

This opinion is written after a reargument. The former opinion was written by the then Chief Justice Fisk. After due consideration we have decided to adopt and reaffirm the following material portions of the former opinion:

The defendants were jointly charged with the crime of murder, and defendants Rognhild Sogge and Elmer Jones were convicted of manslaughter in the first degree, and the punishment fixed at imprisonment in the penitentiary for the term of five years. Defendant Betsy Jones was convicted of manslaughter in the second degree, and the punishment fixed at confinement in the county jail for the period of one year. A motion for a new trial was made in behalf of all three defendants upon the grounds: First. That the court misdirected the jury in matters of law, and has erred in the decision of questions of law arising during the course of the trial, and did and allowed acts in the action prejudicial to the substantial rights of the defendants and each of said defendants. Second. That the verdict is contrary to law and clearly against the evidence. Such motion was denied, and an appeal taken on behalf of all three defendants, both from the order denying a new trial and from the final judgments of conviction.

The facts essential to a general understanding of the case are in brief as follows: It is and was the state's contention that on October 19, 1914, at a farm home about 12 miles southwest of Minnewaukan in Benson county, defendant Betsy Jones, then Betsy Sogge, the unmarried daughter of Rognhild Sogge, gave birth to an illegitimate child, of which defendant Elmer Jones was the father; that such childbirth was intentionally and feloniously permitted and caused to take place in the water-closet on the farm, and the child dropped or deposited in the vault of such closet by its said mother with the felonious knowledge, consent, and procurement of the other defendants, who aided and abetted such mother in such unlawful acts, and with the felonious design of permitting such infant, which was born alive, to die from exposure and lack of food, clothing, and protection; that by reason thereof such child soon thereafter and on said date died, solely by reason of such abandonment. A dead body of an infant apparently fully developed was thereafter and on December 19, 1914, found in and removed from such privy vault; and the record tends to show that about two months prior thereto Betsy gave birth to a child in such closet. One of the sharply contested questions is whether the infant was born alive, and, if so, whether the defendants Rognhild Sogge and Elmer Jones, with guilty knowledge and felonious intent, aided and abetted Betsy in the commission of the crime.

Appellants assign a large number of specifications of error relative to rulings both in the admissionand exclusion of testimony, and others unnecessary here to mention, and in giving certain instructions and refusing to give certain requested instructions to the jury. They also specify numerous particulars, wherein they claim that the evidence is insufficient to sustain the convictions. Some of the specifications are not argued by appellants, and these will, under the well-settled rule of this court, be deemed abandoned, and we shall therefore notice those specifications only which are argued.

[1] The first contention of appellants is that the state failed to prove the corpus delicti. If such contention is sound, the convictions of course cannot stand. This is elementary. It is also elementary law that the expression “corpus delicti,” as understood in homicide cases, means the body of the crime, and consists of two component parts, the first of which is the death of the person alleged to have been killed, and the second that such death was produced through criminal agency. People v. Benham, 160 N. Y. 402, 55 N. E. 11.

[2] Our Code (section 9459, Compiled Laws of 1913) provides that: “No person can be convicted of murder or manslaughter or of aiding suicide, unless the death of the person alleged to have been killed and the fact of the killing by the accused as alleged, are each established as independent facts; the former by direct proof and the latter beyond a reasonable doubt; but in no case upon a plea of not guilty, shall the confession or admission of the accused, in writing or otherwise, be admissible to establish the death of the person alleged to have been killed.”

[3] Appellants strenuously assert that the state has wholly failed to established by direct proof the essential fact that this infant was born alive. They argue that the finding of the dead body of such infant, supplemented merely by circumstantial evidence that it lived after it was born, will not satisfy the statute above quoted. Appellants say there is no direct proof that the body was ever that of a living human being, and that the most that has been shown in this case are “circumstances from which life and death may be inferred by the physicians.” What meaning did the Legislature intend should be given to the words “direct proof,” as employed in section 9459? Was it intended, as appellants seem to assume, that the expression “direct proof,” as employed in the Code, should be construed as the equivalent of “direct evidence”? The two terms have often been defined by the courts, and a distinction between “direct proof” and “direct evidence” pointed out. The terms “evidence” and “proof” in the strict legal sense differ materially. “Evidence” is said to be the medium of proof, while “proof” is defined as the effect or result of evidence. I Jones on Ev. (Pocket Ed.) § 3. See, also, 16 Cyc. 849, C. In the popular sense proof “more often refers to the degree or kind of evidence which will produce full conviction, or establish the proposition to the satisfaction of the tribunal.” I Jones on Ev. § 3. We are inclined to the view that the Legislature intended to use the term “direct proof” in the popular sense and as the equivalent of “direct evidence,” but, however this may be, we are satisfied that direct proof of the finding of the dead body of this infant, as testified to, satisfied the statute. * * * There is persuasive proof of the fact that this child must have been born alive and lived for at least several hours. We shall not attempt to narrate in this opinion the great mass of testimony on this point contained in the very voluminous record before us, but will content ourselves by a brief reference thereto.

Dr. Warren testified that the lungs were filled with air; that they possessed the color of the lungs of a child rather than a foetus; that the pulmonary arteries were enlarged; that fœtal circulation had ceased and natural circulation commenced; that the child was a full term child, normal and capable of independent life. * * * He also testified positively that the congestion in the lungs could take place only in a living being; that it could not take place after death, nor before live birth. This evidence was corroborated by Drs. Bussen and Crawford, and was admitted by the defendants' expert Dr. Roberts, who stated that he had hardly thought that the process of congestion would go on, after a person died, to the extent found here. The same witness stated that the congestion found by Dr. Warren is evidence to establish the fact that the child was born alive, and that some time must have elapsed after birth for the condition of...