State v. Traufer , 109 Mont. 275 ( 1939 )

I concur in the result announced in the foregoing opinion, but not in all that is stated in it. The case of State v.Peterson, 102 Mont. 495, 59 P.2d 61, cited in the majority opinion, in my opinion has no application here. There the prosecutrix testified under oath that defendant did have intercourse with her. Here the prosecutrix under oath says the defendant did not have intercourse with her. Her statement to the contrary made to officers, in my opinion cannot be resorted to as substantive evidence. It was, of course, admissible for impeachment purposes, but its effect was simply to neutralize her statement on the witness-stand. (State v. Kinghorn, 109 Mont. 22,93 P.2d 964.)

I am able to concur in an affirmance of the judgment for the reason that the confession of the defendant may be considered along with other evidence to establish the corpus delicti. (State v. LaLouche, 116 Conn. 691, 166 A. 252; Cross v.State, 96 Fla. 768, 119 So. 380; Commonwealth v. Zelenski,287 Mass. 125, 191 N.E. 355; State v. McGuire, 327 Mo. 1176,39 S.W.2d 523; Mangum v. United States, (9 Cir.) 289 Fed. 213.) And for the reason that where there has been a confession much slighter proof is required to establish the corpus delicti than is necessary otherwise. (Whittaker v. State, 169 Miss. 517,142 So. 474, and compare State v. Taylor, 119 Kan. 260,237 P. 1053; State v. Bell, 121 Kan. 866, 250 P. 281.)

Hence, under the liberal use of circumstantial evidence to prove a crime, adopted by the majority opinion in State v.Kinghorn, supra, the circumstances here, coupled with the confession of defendant, were sufficient to prove the corpusdelicti.

Rehearing denied January 5, 1940.