WHITE, J.
The defendant, April 27, 1922, in the Circuit Court of Carter County, on a trial before a jnry, was found guilty of murder in the first degree, committed upon one Karl Plerman, and his punishment fixed at death. An appeal of this case was dismissed for defective affidavit (248 S. W. 927). The case is now brought here on writ of error sued out in this court.
Karl Herman lived on his farm near Plunter in Carter County. He disappeared from observation about January 24, 1922. The defendant, whq was at Herman’s place, told callers that Herman had gone to. St. Louis on business, and that he was left to take care of the place. In about a week Campbell took the horses and wagons of Herman and- drove away. He was arrested about six miles northeast of Alton, in the hills, where he was camping a quarter of a mile from any road.
Campbell had at the time a complete outfit for camping : bedding, teams, wagon, provisions, cooking utensils, axe, hammer, etc. He had two twelve-gauge shotguns, a 22-calibre, and one 38 automatic Colt, and one-38 IvorJohnson revolver. The deputy sheriff who arrested him found hand-cuffs in a trunk at the camp and put them upon defendant. Pie told the officer who arrested him that he had ld-lled Herman, and said that he took the household goods because he figured that was the best way to hide the crime; that he had a sale on that afternoon for the stove, that some people were going to look at it and he was going.to sell it; then he told where he had buried the body of Herman. The body was found in Herman’s barn, buried about a foot deep under manure. Defendant explained that he had a quarrel with Herman about the war. He asked Herman if he had ever served in the army, and Herman said, “No, to hell with the
Government.” Defendant said lie couldn’t stand that, and he grabbed a gun and shot Herman. He confessed the killing to a number of witnesses. The body of Herman showed a shot through the body near the heart — a wound which produced death.
Quite a volume of evidence was introduced by the State showing the circumstances and details surrounding the finding of Herman’s body, all of which tended to corroborate the statements of the defendant as to the time and manner of inflicting death by him upon the deceased. Campbell did not testify, but offered evidence for the purpose of proving he was insane at the time, insanity being his only defense.
I. The body of Herman was found under circumstances. showing that he was shot to death by some person; the
corpus delicti
was thereby estabüshed. The confession of the defendant after the proof of
corpus delicti
was sufficient to establish his guilt if in fact he was sane at the time he made the confession and at the time he committe'd the act. [16 C. J., pp. 735, 736; State v. Scott, 39 Mo. l. c. 426; State v. Young, 237 Mo. l. c. 177.]
II. We think the evidence offered by the defendant was sufficient to submit the question of the defendant’s sanity to the jury. A copy of a record of the Superior Court of Marin County, California, properly authenticated, was produced, to show that Campbell was adjudged insane December 7, 1906. It was found that he was so far disordered in mind “that it was dangerous . . . for such person to be at large.” The record of the State Hospital at Talmadge, California, where he was confined, showed that he was committed to that institution from Marin County December 18, 1906, and discharged as recovered August 1, 1914.
In the deposition of Annie Campbell, taken in California, April 18, 1922, she testified that she saw the defendant frequently after his discharge from the insane
asylum, and that he was not entirely cured; she was afraid of him, and she thought he was insane after his discharge, as well as when he was committed. She described his demeanor. Among other things she said he was jumping around, very nervous, and acted like a man badly unstrung.
A brother of the defendant, J. C. Campbell, by deposition testified, April 18, 1922, that he saw him every day for three weeks after he was discharged from the insane asylum. He said the defendant was very nervous; “he had a tendency to throw the table utensils (knives, forks, etc.) into the stove and burn them up.”
Dr. A. T. Bugg, one of the physicians appointed by the court, examined the defendant and testified that he was not an expert neurologist and would not pass upon the question as to whether the defendant was insane. He said the defendant was not developed mentally; he was mentally deficient — about like a child six years of age. Dr. Eblen said that in his judgment defendant had a mind on par with a twelve-year-old child. Dr. Johnson, testified that the defendant’s mental condition was subnormal, and from the examination which the physicians made they determined that he was afflicted with paranoia, a condition, he explained which rarely develops into a suicidal tendency, but develops a homicidal tendency.
“It seems to them (paranoiacs) right and proper to destroy life, but they are devoid of fear of the Creator; in fact I don’t think they acknowledge one — not responsible to our Creator.”
That witness further explained that a person afflicted with that form of insanity was disposed to conceal or cover up anything he said or did: “They don’t seem to shirk their responsibility; their fear seems to be of a material type.”
There was more evidence of that kind.. The actions of the defendant, his statements when arrested and while in custody of the officer, all indicate a person of unbalanced mind. He hardly seemed to realize that he had
done anything wrong, although his actions indicated that he was afraid he might be punished for it, which corresponds with the physician’s statement that the fear'was of a material type not caused by a conscious wrong. We think this evidence was sufficient to submit to the jury the question whether the defendant was insane.
III. One instruction complained of in the motion, for new trial was number three, which contained this paragraph:
“Flight raises the presumption of guilt; and if the jury believe and find from the evidence that the defendant, after the alleged homicide charge in the information, fled from the scene of the tragedy in Carter County, Missouri, for the purpose of avoiding arrest and trial for said offense, you may take this fact into consideration in determining his guilt or innocence of the offense charged. ’ ’
The State confesses error in the giving of this instruction, citing State v. Hogan, 252 S. W. 387; State v. Swarens, 241 S. W. 934.
It is asserted that the instruction is harmless because the defendant admits that he killed Herman, and to indulge the presumption that he had done so adds nothing to that confession; the court in an instruction may assume a fact which is not controverted.
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WHITE, J.
The defendant, April 27, 1922, in the Circuit Court of Carter County, on a trial before a jnry, was found guilty of murder in the first degree, committed upon one Karl Plerman, and his punishment fixed at death. An appeal of this case was dismissed for defective affidavit (248 S. W. 927). The case is now brought here on writ of error sued out in this court.
Karl Herman lived on his farm near Plunter in Carter County. He disappeared from observation about January 24, 1922. The defendant, whq was at Herman’s place, told callers that Herman had gone to. St. Louis on business, and that he was left to take care of the place. In about a week Campbell took the horses and wagons of Herman and- drove away. He was arrested about six miles northeast of Alton, in the hills, where he was camping a quarter of a mile from any road.
Campbell had at the time a complete outfit for camping : bedding, teams, wagon, provisions, cooking utensils, axe, hammer, etc. He had two twelve-gauge shotguns, a 22-calibre, and one 38 automatic Colt, and one-38 IvorJohnson revolver. The deputy sheriff who arrested him found hand-cuffs in a trunk at the camp and put them upon defendant. Pie told the officer who arrested him that he had ld-lled Herman, and said that he took the household goods because he figured that was the best way to hide the crime; that he had a sale on that afternoon for the stove, that some people were going to look at it and he was going.to sell it; then he told where he had buried the body of Herman. The body was found in Herman’s barn, buried about a foot deep under manure. Defendant explained that he had a quarrel with Herman about the war. He asked Herman if he had ever served in the army, and Herman said, “No, to hell with the
Government.” Defendant said lie couldn’t stand that, and he grabbed a gun and shot Herman. He confessed the killing to a number of witnesses. The body of Herman showed a shot through the body near the heart — a wound which produced death.
Quite a volume of evidence was introduced by the State showing the circumstances and details surrounding the finding of Herman’s body, all of which tended to corroborate the statements of the defendant as to the time and manner of inflicting death by him upon the deceased. Campbell did not testify, but offered evidence for the purpose of proving he was insane at the time, insanity being his only defense.
I. The body of Herman was found under circumstances. showing that he was shot to death by some person; the
corpus delicti
was thereby estabüshed. The confession of the defendant after the proof of
corpus delicti
was sufficient to establish his guilt if in fact he was sane at the time he made the confession and at the time he committe'd the act. [16 C. J., pp. 735, 736; State v. Scott, 39 Mo. l. c. 426; State v. Young, 237 Mo. l. c. 177.]
II. We think the evidence offered by the defendant was sufficient to submit the question of the defendant’s sanity to the jury. A copy of a record of the Superior Court of Marin County, California, properly authenticated, was produced, to show that Campbell was adjudged insane December 7, 1906. It was found that he was so far disordered in mind “that it was dangerous . . . for such person to be at large.” The record of the State Hospital at Talmadge, California, where he was confined, showed that he was committed to that institution from Marin County December 18, 1906, and discharged as recovered August 1, 1914.
In the deposition of Annie Campbell, taken in California, April 18, 1922, she testified that she saw the defendant frequently after his discharge from the insane
asylum, and that he was not entirely cured; she was afraid of him, and she thought he was insane after his discharge, as well as when he was committed. She described his demeanor. Among other things she said he was jumping around, very nervous, and acted like a man badly unstrung.
A brother of the defendant, J. C. Campbell, by deposition testified, April 18, 1922, that he saw him every day for three weeks after he was discharged from the insane asylum. He said the defendant was very nervous; “he had a tendency to throw the table utensils (knives, forks, etc.) into the stove and burn them up.”
Dr. A. T. Bugg, one of the physicians appointed by the court, examined the defendant and testified that he was not an expert neurologist and would not pass upon the question as to whether the defendant was insane. He said the defendant was not developed mentally; he was mentally deficient — about like a child six years of age. Dr. Eblen said that in his judgment defendant had a mind on par with a twelve-year-old child. Dr. Johnson, testified that the defendant’s mental condition was subnormal, and from the examination which the physicians made they determined that he was afflicted with paranoia, a condition, he explained which rarely develops into a suicidal tendency, but develops a homicidal tendency.
“It seems to them (paranoiacs) right and proper to destroy life, but they are devoid of fear of the Creator; in fact I don’t think they acknowledge one — not responsible to our Creator.”
That witness further explained that a person afflicted with that form of insanity was disposed to conceal or cover up anything he said or did: “They don’t seem to shirk their responsibility; their fear seems to be of a material type.”
There was more evidence of that kind.. The actions of the defendant, his statements when arrested and while in custody of the officer, all indicate a person of unbalanced mind. He hardly seemed to realize that he had
done anything wrong, although his actions indicated that he was afraid he might be punished for it, which corresponds with the physician’s statement that the fear'was of a material type not caused by a conscious wrong. We think this evidence was sufficient to submit to the jury the question whether the defendant was insane.
III. One instruction complained of in the motion, for new trial was number three, which contained this paragraph:
“Flight raises the presumption of guilt; and if the jury believe and find from the evidence that the defendant, after the alleged homicide charge in the information, fled from the scene of the tragedy in Carter County, Missouri, for the purpose of avoiding arrest and trial for said offense, you may take this fact into consideration in determining his guilt or innocence of the offense charged. ’ ’
The State confesses error in the giving of this instruction, citing State v. Hogan, 252 S. W. 387; State v. Swarens, 241 S. W. 934.
It is asserted that the instruction is harmless because the defendant admits that he killed Herman, and to indulge the presumption that he had done so adds nothing to that confession; the court in an instruction may assume a fact which is not controverted.
This argument proceeds upon the theory that the defendant was sane when he made the admission. A confession of an insane person would be no confession at all. The defendant denies that he committed any crime, because he was insane at the time he is charged with killing Herman. The effect of this instruction is to tell the jury that if he fled from the place where the crime was alleged to have been committed, or was found in another place soon afterwards, that is a presumption of guilt; that is, a presumption that he was
sane,
because he could not be guilty unless he was sane when he committed the act. In short, the instruction tells the jury the defendant was not
insane
and takes away that defense from their.consideration.
IV. Some instructions were given regarding the acts of the defendant and the .statements made by him, which do not require a finding that such acts and statements were made by him while sane. No doubt the defendant would have been entitled to an instruction if he had asked it, qualifying all such instructions to the effect that no acts or statements of his could be taken as evidence of his guilt unless such acts and statements occurred while he was sane and capable of understanding what he was saying and doing. Plowever, the defendant asked no such instruction, nor did the motion for.new trial predicate error upon the failure of the court to instruct upon all the law of the case, so there was no error in that respect.
V. Error was assigned to the ruling of the court -in failing to sustain the motion for new trial on account of misconduct of a juror, and the failure of the court to accept the written report of the physicians appointed to inquire into the condition of the defendant. Whatever the merits of these complaints, cause for them likely will not occur at another trial.
The judgment is reversed and the cause remanded.
David E. Blair, P. J.,
concurs;
Walker,
J., dissents in separate opinion.