State v. Jensen

221 S.E.2d 717 (1976) 28 N.C. App. 436

STATE of North Carolina
v.
Charles L. JENSEN.

No. 7512SC715.

Court of Appeals of North Carolina.

February 4, 1976.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. T. Buie Costen, Raleigh, for the State.

MacRae, MacRae & Perry by James C. MacRae, Fayetteville, for defendant-appellant.

PARKER, Judge.

Defendant assigns error to denial of his motions for nonsuit. He contends there was insufficient evidence aliunde his extrajudicial confessions to warrant submitting the case to the jury. We find no error.

The proof of every crime consists of (1) proof that the crime charged was committed by someone and (2) proof that defendant was the perpetrator of the crime. The first shows the corpus delicti; the second shows defendant's guilty participation therein. State v. Thomas, 15 N.C.App. 289, 189 S.E.2d 765 (1972). A naked extrajudicial confession or admission of guilt by one accused of crime, uncorroborated by other evidence, is not sufficient to sustain a conviction. State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972); Annot., 45 A.L.R. 2d 1316 (1956). There must be evidence apart from the confession or admission tending to establish the fact that a crime of the character charged has been committed, i. e. tending to establish the corpus delicti. State v. Thomas, 241 N.C. 337, 85 S.E.2d 300 (1955). State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961). "This does not mean, however, that the evidence tending to establish the corpus delicti must also identify the defendant as the one who committed the crime." State v. Cope, 240 N.C. 244, 247, 81 S.E.2d 773, 776 (1954). Moreover, the corroborative evidence need not be direct, but may be circumstantial, 2 Stansbury's N.C. Evidence (Brandis Revision), § 182, and "[t]he rule does not require that the independent evidence of corpus delicti shall be so full and complete as to establish unaided the commission of a crime." State v. Burgess, 1 N.C.App. 104, 107, 160 S.E.2d 110, 112 (1968). It will be sufficient if the circumstances shown by the corroborative evidence are such "as will, when taken in connection with the confession, establish the prisoner's guilt in the minds of the jury beyond a reasonable doubt." State v. Whittemore, supra, 255 N.C. at p. 589, 122 S.E.2d at 401; [For a history of the development of the rule in this State, see Note, 42 N.C.L.Rev. 219 (1963)]. In a recent case Justice Branch, speaking for our Supreme Court, stated the rule to be now "well settled that if the State offers into evidence sufficient extrinsic corroborative circumstances as will, when taken in connection with an accused's confession, show that the crime was committed and that the accused was the perpetrator, the case should be submitted to the jury", State v. Thompson, 287 N.C. 303, 324, 214 S.E.2d 742, 755 (1975).

Applying the foregoing principles and viewing the corroborative evidence in the present case in the light most favorable to the State, we find it sufficient, when taken in connection with defendant's extrajudicial confessions, to require submission of the case to the jury. The corpus delicti in criminal homicide involves two elements: (1) The fact of the death. (2) The existence of the criminal agency of another as the cause of death. State v. Johnson, 193 N.C. 701, 138 S.E. 19 (1927). Here, the finding of skeletal remains which were positively identified as those of defendant's wife clearly established the fact of her death. All of the circumstances shown by the evidence support a reasonable inference of the existence of the criminal agency of another as the cause of death. The body of one who dies from natural causes, accident, or suicide, is not normally disposed of by burial in an unmarked, shallow grave, in a remote wooded area of a farm. The circumstances that defendant's 23 year old wife suddenly disappeared at a time when she was in apparent good health, that no announcement for any plans for departure was made either by defendant or his wife to their landlady or friends, that her clothing and personal effects were abandoned in their apartment, that defendant went AWOL from his army post at approximately the same time that his wife disappeared, that his wife's body was found buried in the manner and at a place as described by defendant in his statements to Stevens and Hoach, furnish strong corroborative support for his confessions. It is not essential, as defendant contends, that the State's evidence aliunde his confession establish the exact cause of death. Indeed, "[t]o meet the foundational test the prosecution need not eliminate all inferences tending to show a non-criminal cause of death. Rather, a foundation may be laid by the introduction of evidence which creates a reasonable inference that the death could have been caused by a criminal agency . . . even in the presence of an equally plausible non-criminal explanation of the event." State v. Hamilton and State v. Beasley, 1 N.C.App. 99, 102, 160 S.E.2d 79, 81 (1968). We hold the State's evidence here aliunde defendant's incriminating admissions, when taken in connection with his admissions, sufficient to warrant submission of the case to the jury. Defendant's motions for nonsuit were properly denied.

Citing Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), the defendant contends that the court erred in that portion of its charge to the jury in which the court stated in effect that if the jury found beyond a reasonable doubt that defendant strangled his wife, to reduce the crime to voluntary manslaughter the defendant must satisfy the jury that there was no malice on his part but that in strangling his wife he acted in the heat of passion. The instruction given conforms to the law in effect in this State prior to the Mullaney decision, which was decided 9 June 1975. In State v. Hankerson, N.C., 217 S.E.2d 9 (1975), decided 17 December 1975, our Supreme Court declined to give Mullaney retroactive effect. Trial of the present case took place in March 1975, prior to the decision in Mullaney. On the authority of State v. Hankerson, supra, we do not apply the principles announced in Mullaney to the present case, and defendant's assignment of error based upon Mullaney is overruled.

Defendant also assigns error to certain other portions of the court's charge to the jury. We have carefully considered all of defendant's contentions in this regard. However, considering those portions of the charge to which exception is taken contextually and considering the charge as a whole, we find no prejudicial error. Defendant has had a fair trial. In the trial and in the judgment appealed from we find

No Error.

HEDRICK and ARNOLD, JJ., concur.