Landoh, J.:
Tbe prisoner was convicted of murder in tbe first degree. Tbe indictment charged that Simon A. Yandercook was the person murdered. We are confronted upon tbe threshold of our examination with the objection that the statute requires direct proof of the death of the person alleged to have been killed, and it is alleged that there is no direct proof that Simon A. Yandercook, the person [423]*423here alleged to have been killed, is dead. There is direct proof that a man in many respects resembling Simon A. Yandereook is dead; there is circumstantial evidence sufficient to satisfy the mind beyond a reasonable doubt that such person was Simon A. Yander-eook; but the question remains, is there such direct proof of his death as the statute requires ?
Section 181 of the Penal Code provides: “ No person can be convicted of murder or manslaughter, unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as independent facts ; the former by direct proof, and the latter beyond a reasonable doubt.” This section of the Penal Code, as enacted in 1881, did not contain the words which we have placed in italics/ these were added by amendment in 1882.
This homicide was committed on the 10th day of «anuary, 1882. The Penal Code, although passed July 26,1881, did not, according to its last section (727), take effect until the 1st day of December, 1882, and when it took effect, section 181 had already been amended in the particular mentioned. But section 2 provides that “ Any act or omission begun prior to that day (Dec. 1,1882), may beinquired of prosecuted and punished in the same manner as if this Code had not been passed.” The identity of the dead body as the body of Yandercook might, therefore, be established as at common law.
The commissioners, in framing the section * as it was enacted in 1881, as we learn from the note appended to section 238 of their draft of the Penal Code as published in 1864, intended to state the rule as announced in Ruloff's Case (18 N. Y., 179). But it is manifest that they failed to do so. The rule in Buloff’s case was announced to be that a conviction for murder cannot be permitted “ without direct proof of the death, or of the violence or other act of the defendant which is alleged to have produced death.” This direct proof of the death was declared to be either the production of the dead body , or direct proof of the violence which caused the death and also caused the destruction or disappearance of the body so that it could not be produced, as in the case of sinking the body in the sea or consuming it by fire,
But section 181 really permitted proof - of the death by circum[424]*424stantial evidence.; because circumstantial evidence, if sufficient and convincing, is competent, unless tbe statute forbids, to prove any fact beyond a reasonable doubt. It was obviously intended by the amendment of 1882 to make the section actually conform to the rule, with respect to death, which is announced in Buloff’s case. JBut the section as it now stands requires direct proof, not only of the death but also of the identification of the dead body found or produced with the person named in the indictment as the person killed.
Rulofi: was convicted of the murder of his child. The dead body of his child was never found, and there was no direct evidence of his murderous violence to the child, or of his destruction of or secreting its body. But there was indirect or circumstantial evidence sufficient to satisfy the jury that he first murdered his child, placed it in a box and put iron enough in the box to make it sink in the water, and sunk it in the deep water of a lake. But the Court of Appeals reversed the conviction, holding that until direct proof of death was adduced, either by proof of finding the dead body or of the violence which caused its death, there was no occasion to inquire into the guilty agency of the prisoner.
The question of the identification of a dead body with the person named in the indictment as having been killed did not arise in the case. Such a question, however, did arise in Dr, Webster's Case (5 Cush., 295), and circumstantial evidence or indirect proof was resorted to to establish' the identity of the nearly consumed remains of Parkman, the man alleged to have been murdered. Also in People v. Wilson (3 Park., 199); Regina v. Cheverton (2 Foster & F., 833). Greenleaf on Evidence (vol. 3) states the rule thus: “ Sec. 133. But though it is necessary that the body of the deceased be satisfactorily identified, it is not necessary that this be proved by direct and positive evidence if the circumstances be such as to leave no reasonable doubt of the fact.”
The identitity of the dead body of Simon A. Yandercook was, by the evidence adduced, established beyond a reasonable doubt. As the homicide was committed before the Penal Code took effect, we think it was competent to establish the identity by presumptive proof, that is by facts and circumstances tending to establish the identity, and sufficiently convincing to exclude all [425]*425reasonable doubt. But if tbe case should be governed by section 181 of tbe Penal Code, we do not think direct proof” of identity should be held to exclude the points and features of resemblance, and circumstances tending to establish identity.
Here the head of the dead body had been consumed by fire. One of Yandercook’s hands and one of his feet had peculiar marks as of some injury. The corresponding hand and foot of this dead body had also been consumed. Witnessess to whom the head and hand and foot were familiar, might well hesitate to testify directly “this is the body of Yandercook,” and yet be able to give direct evidence of facts and circumstances amounting to what we usually call presumptive or circumstantial proof of identity, and which might be sufficiently convincing to satisfy the mind beyond all reasonable doubt. Indeed, one witness might give one fact) and another witness another, and the sum of the facts might make a much stronger case for the jury than some witnesses would need to enable them directly to say “this is the dead body of Yander-cook.” In whatever form stated, proof of identity in such cases is a matter of opinion based upon the witnesses’ impression of the sameness of, or resemblance between the body seen, and his mental picture of the person alleged to have been killed. However directly he may testify, he gives but an opinion or impression induced by the facts upon his mind. When he says “ this body is Yandercook ” he means “I think it is; I believe it is; ” and, strictly speaking, we have only direct proof of what he thinks and what he believes, not what the fact sought actually is. Hence we think when the legislature required direct proof of the identity, they could not have intended to require any higher proof than the nature of the case would admit of. Such proof was given in this case, and we think justified the finding of the fact of the identity.
it is objected that conceding that the defendant killed Yander-cook, there is no evidence of the “ deliberate and premeditated design to effect his death ” required by the statute (Penal Code, § 188), or if any, not sufficient to justify a conviction of murder in the first degree.
The defendant lived alone in a small cabin on a mountain near what he supposed to be a gold mine which he had discovered.
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Landoh, J.:
Tbe prisoner was convicted of murder in tbe first degree. Tbe indictment charged that Simon A. Yandercook was the person murdered. We are confronted upon tbe threshold of our examination with the objection that the statute requires direct proof of the death of the person alleged to have been killed, and it is alleged that there is no direct proof that Simon A. Yandercook, the person [423]*423here alleged to have been killed, is dead. There is direct proof that a man in many respects resembling Simon A. Yandereook is dead; there is circumstantial evidence sufficient to satisfy the mind beyond a reasonable doubt that such person was Simon A. Yander-eook; but the question remains, is there such direct proof of his death as the statute requires ?
Section 181 of the Penal Code provides: “ No person can be convicted of murder or manslaughter, unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as independent facts ; the former by direct proof, and the latter beyond a reasonable doubt.” This section of the Penal Code, as enacted in 1881, did not contain the words which we have placed in italics/ these were added by amendment in 1882.
This homicide was committed on the 10th day of «anuary, 1882. The Penal Code, although passed July 26,1881, did not, according to its last section (727), take effect until the 1st day of December, 1882, and when it took effect, section 181 had already been amended in the particular mentioned. But section 2 provides that “ Any act or omission begun prior to that day (Dec. 1,1882), may beinquired of prosecuted and punished in the same manner as if this Code had not been passed.” The identity of the dead body as the body of Yandercook might, therefore, be established as at common law.
The commissioners, in framing the section * as it was enacted in 1881, as we learn from the note appended to section 238 of their draft of the Penal Code as published in 1864, intended to state the rule as announced in Ruloff's Case (18 N. Y., 179). But it is manifest that they failed to do so. The rule in Buloff’s case was announced to be that a conviction for murder cannot be permitted “ without direct proof of the death, or of the violence or other act of the defendant which is alleged to have produced death.” This direct proof of the death was declared to be either the production of the dead body , or direct proof of the violence which caused the death and also caused the destruction or disappearance of the body so that it could not be produced, as in the case of sinking the body in the sea or consuming it by fire,
But section 181 really permitted proof - of the death by circum[424]*424stantial evidence.; because circumstantial evidence, if sufficient and convincing, is competent, unless tbe statute forbids, to prove any fact beyond a reasonable doubt. It was obviously intended by the amendment of 1882 to make the section actually conform to the rule, with respect to death, which is announced in Buloff’s case. JBut the section as it now stands requires direct proof, not only of the death but also of the identification of the dead body found or produced with the person named in the indictment as the person killed.
Rulofi: was convicted of the murder of his child. The dead body of his child was never found, and there was no direct evidence of his murderous violence to the child, or of his destruction of or secreting its body. But there was indirect or circumstantial evidence sufficient to satisfy the jury that he first murdered his child, placed it in a box and put iron enough in the box to make it sink in the water, and sunk it in the deep water of a lake. But the Court of Appeals reversed the conviction, holding that until direct proof of death was adduced, either by proof of finding the dead body or of the violence which caused its death, there was no occasion to inquire into the guilty agency of the prisoner.
The question of the identification of a dead body with the person named in the indictment as having been killed did not arise in the case. Such a question, however, did arise in Dr, Webster's Case (5 Cush., 295), and circumstantial evidence or indirect proof was resorted to to establish' the identity of the nearly consumed remains of Parkman, the man alleged to have been murdered. Also in People v. Wilson (3 Park., 199); Regina v. Cheverton (2 Foster & F., 833). Greenleaf on Evidence (vol. 3) states the rule thus: “ Sec. 133. But though it is necessary that the body of the deceased be satisfactorily identified, it is not necessary that this be proved by direct and positive evidence if the circumstances be such as to leave no reasonable doubt of the fact.”
The identitity of the dead body of Simon A. Yandercook was, by the evidence adduced, established beyond a reasonable doubt. As the homicide was committed before the Penal Code took effect, we think it was competent to establish the identity by presumptive proof, that is by facts and circumstances tending to establish the identity, and sufficiently convincing to exclude all [425]*425reasonable doubt. But if tbe case should be governed by section 181 of tbe Penal Code, we do not think direct proof” of identity should be held to exclude the points and features of resemblance, and circumstances tending to establish identity.
Here the head of the dead body had been consumed by fire. One of Yandercook’s hands and one of his feet had peculiar marks as of some injury. The corresponding hand and foot of this dead body had also been consumed. Witnessess to whom the head and hand and foot were familiar, might well hesitate to testify directly “this is the body of Yandercook,” and yet be able to give direct evidence of facts and circumstances amounting to what we usually call presumptive or circumstantial proof of identity, and which might be sufficiently convincing to satisfy the mind beyond all reasonable doubt. Indeed, one witness might give one fact) and another witness another, and the sum of the facts might make a much stronger case for the jury than some witnesses would need to enable them directly to say “this is the dead body of Yander-cook.” In whatever form stated, proof of identity in such cases is a matter of opinion based upon the witnesses’ impression of the sameness of, or resemblance between the body seen, and his mental picture of the person alleged to have been killed. However directly he may testify, he gives but an opinion or impression induced by the facts upon his mind. When he says “ this body is Yandercook ” he means “I think it is; I believe it is; ” and, strictly speaking, we have only direct proof of what he thinks and what he believes, not what the fact sought actually is. Hence we think when the legislature required direct proof of the identity, they could not have intended to require any higher proof than the nature of the case would admit of. Such proof was given in this case, and we think justified the finding of the fact of the identity.
it is objected that conceding that the defendant killed Yander-cook, there is no evidence of the “ deliberate and premeditated design to effect his death ” required by the statute (Penal Code, § 188), or if any, not sufficient to justify a conviction of murder in the first degree.
The defendant lived alone in a small cabin on a mountain near what he supposed to be a gold mine which he had discovered. A company had been formed which obtained the title to the mine and [426]*426land about it. Yandercook became tbe manager of the mine, and the defendant either was, or supposed he was, excluded from any interest in it. Yandercook boarded in the family of Harrison Calkins, who lived about half a mile away. He had boarded there about three years before the homicide. Not much work had been done in the mine, but Yandercook cut off the wood from the lot and used the proceeds. The defendant became dissatisfied and had said-to others, respecting Yandercook, that he would like to put him out of the way and suck his heart’s blood , that he would like to get some one to do it; that anyone who knocked Yandercook over would get two or three hundred dollars. Some of these statements were repeatedly made. Yandercook was last seen alive about eleven o’clock in the forenoon on the 10th day of January, 1882, near the cabin of the defendant. Two days later some neighbors broke into this cabin and found there Yandercook’s dead body, with the exception of his head, left hand, one foot, and part of his spinal column. The body had been cut into lengths or pieces apparently to fit them to be burned in the stove which was in the cabin. The examination of the ashes in the stove disclosed charred fragments of bones, apparently those of the missing parts of the body, also of woolen clothing. About four o’clock of the afternoon of the tenth of January, Beckwith called at the house of Mr. Calkins, and stated to Mrs. Calkins that Yandercook had gone away with a man from Green river to get up a stock company and would not be back until March. Mr. Calkins visited the defendant in his cabin that evening As he approached it he perceived an unusual odor as of something burning, When he entered the cabin he found the stove red hot, and heard something frying or crackling within it, and, upon asking defendant the cause, the defendant answered that he was burning pork rinds. Calkins went away and the defendant was not again seen in that neighborhood,. It subsequently transpired that he fled to Canada and lived there under the name of White When he .was arrested, some small articles, identified as Yandercook’s, were found in his possession. The examination of the body of Yander-cook disclosed a cut as of a knife entering the back beneath the shoulder blade and penetrating to the right lung. The physician testi ■ fied that the ecchymosed condition of the lung indicated that Yander-cook was alive when he received this cut, that it would greatly [427]*427shock and weaken, but would not instantly kill him. Two axes were found in the cabin, one much covered with flesh; on the head of the other were a few short gray hairs, Yandercook’s hair was short and gray The defendant, being m jail, stated to some visitors that Yandercook came to his cabin ; that they had a tussle and Yan-dercook got the worst of it, that Yandercook got killed m his house; that he knew who did it, but he did not, that he got chopped up. With respect to the defendant’s statement it is proper to say that while the law requires all of it to be considered, it is powerless to compel a jury to believe the portions of it that they discredit.
Yandercook was a much larger, stronger and more active man than the defendant. The jury obviously came to the conclusion that the threats of the defendant indicated his hostile feeling towards Yandercook, that the idea of killing him was often present to his mind, and was much deliberated upon by him, That when Yandercook came to his cabin, whether an altercation or tussle occurred between them or not, the defendant took this opportunity to stab him in the back , that this wound was not sufficient to kill him instantly, and that he completed the homicide by striking him on the head with one of his axes The other circumstances of the case no doubt strengthened their conviction of the capacity of the defendant to commit such a crime, and that he did it with premeditation and deliberation. The statement of these circumstances seems to carry its own argument, and discussion is not useful. We think the evidence justifies the verdict.
Harrison Calkins was a material witness on the part of the prosecution On his cross-examination he testified that the relations between Yandercook and defendant were friendly so far as he knew. He was asked if he did not state to Dr. Hulette upon the highway, in the presence of Mrs Hulette, that they (meaning himself and Yandercook), were not doing anything with the mine now , that that half crazy Beckwith was bothering them and they could not do anything with it. He answered he did not remember any such remark. Mrs Hulette was called by the defendant’s counsel and asked, in substance, if Calkins did not say so Objection being made it was sustained, and we think properly It was competent for the prisoner’s counsel to prove by the witness, by way of discrediting him, that he had made a statement out of court contrary [428]*428to bis testimony m. If ihe witness should deny or testify that be did not remember making sucb contradictory statement, it would -be competent to prove it by another witness. .The prisoner’s counsel here did not seek to prove, either by the witness Calkins or by, Mrs' ITulette, any statement that Vandercoolc and defendant’s relations were unfriendly, but that Calkins had said that that half crazy Beckwith was bothering them and they could not do anything with the mine, a statement, which, if made, was expressive of Cálkin’s estimate of defendant and his conduct, but not proving that'his sworn statement was opposed to his conversational one.
Whether Calkins had made the latter statement was immaterial, and not the proper subject of an issue. (Carpenter v. Ward, 30 N. Y, 243.) The motion m arrest of judgment upon the ground of irregularity does not appear to be supported by proof of the irregularity alleged.
-Wo think the conviction and judgment should be affirmed.
Bockes, J., concurred.