Emmett, C. J..
By the Court. The prosecution gave in evidence on the trial, several distinct voluntary confessions or declarations made by the Defendant, of the agency or participation he had in the crime charged in the indictment. In the confession made to the witness Ellslayer, he admitted that he had tilled his wife, by throwing her against a block or log of the house, and then striking her with an axe, and gave as a reason for killing her that she had set some hay on fire, and then was the best time to get her out of the way. He further said that he and one Klaas Hghlman afterwards placed her body upon a horse and carried it about a half mile to an ice house, which they then set on fire, and the same night, after the fire was over, buried the remains. These statements were made at a time when Defendant was endeavoring to persuade the witness to assist in removing the body to a safer place.
In the accounts which the Defendant gave to the witness Oapt. Morton, he said that his wife was up stairs crying, and he called to her to come down, but she would not come. That he then went up and got hold of her to bring her down, and While so doing, she fell down the stairs and was killed. At other times he told this witness that his wife had struck him over the head with something. He also stated to him that when he found his wife was dead, he was frightened and had put the body in the ice house to avoid the stench.
In corroboration of these confessions, the prosecution showed that the charred remains of a human body, together with pieces of a female’s dress, recognized by a witness as that worn by Mrs. Laliyer when last seen alive, and two or three [374]*374hair pins, were afterwards found buried as designated by the Defendant, under the ruins of the ice house. It also appeared that the Defendant and his wife lived unhappily together, and that he was desirous of getting rid of her. That she had disappeared from the neighborhood, and had not been seen since the day preceding the night on which the ice house was burned, and further, that a neighbor whose hay had been destroyed by fire just previous to Mrs. Laliyer’s disappearance had been told by the Defendant that his, Defendant’s, wife had set the hay on fire.
We cannot repeat all the evidence. Suffice it to say that the only direct evidence of the Defendant’s criminal participation in the death of his wife is to be found in his own declarations. This being the case, it was for the jury to determine which of his several statements, if either, was the true one. The jury, however, were not bound to take as true the statement most favorable to the prisoner, nor indeed anything he may have said in his own favor, merely because the State used it against him. They might have rejected as improbable, or inconsistent with all the circumstances of the case, any one of these confessions, or any portion thereof. But inasmuch as the several statements were before the jury, and were relied on to connect the Defendant with the crime charged, it was all important to him, that all that he had said should be taken into-consideration, and acted upon by the jury, that he might have the benefit of whatever he may have said in his own favor which the jury should find to be true.
The Judge, however, charged the jury “that there was no testimony in the case which would warrant the finding of the Defendant guilty of manslaughter.” “ That he must be found guilty, or acquitted.”
This charge we think is erroneous, becáuse' it left the jury at liberty to infer that they were not to take into consideration the statements made by the Defendant to Capt. Morton, or that they were untrue in the opinion of the court, of that being true, the facts therein confessed constituted the crime of murder in the first degree. Either of these inferences would be manifestly to the prejudice of the prisoner.
If the crime was committed in the manner stated in the [375]*375confession made to tlie witness Ellslaycr, the Defendant is guilty of murder in the first degree, for the facts therein admitted show the hilling to have been perpetrated with a premeditated design to effect death. But if either of the statements made to Oapt. Morton be the true history of his conduct, then the homicide would amount to manslaughter only; for whether the killing was voluntary by throwing the deceased down the stairs in the heat of passion during a scuffle or fight which may have ensued after she struck the prisoner over the head, (as unfavorable a view perhaps as the statements will bear,) or involuntarily, while the Defendant was engaged in an unlawful attempt to bring her down by force, still it would not be murder, there being no evidence of a premeditated design to effect her death.
So long, therefore, as it was doubtful which of these several statements, if either, contained the true account of the Defendant’s agency in his wife’s death, so long was it uncertain of what crime and in what degree he was guilty. These doubts it was the province of the jury to solve under the charge of the court, and if they had reasonable ground of doubt, of which crime, or in what degree, he was guilty, they could convict of the lowest only. Com. Stat. 782, Sec. 2.
Among the numerous questions raised in this case, was one involving the interpretation of Sec. 6, Chap. 118 of the Compiled Statutes, page 782. The section is as follows:
“A confession of a Defendant, whether made in the course of judicial proceedings or to a private person, cannot be given in evidence against him, when made under the influence of fear produced by threats, nor is it sufficient to warrant his conviction, without proof that the offence charged has been committed.”
The doctrine that a confession duly made and satisfactorily proved is sufficient alone to warrant a conviction, without any corroborating circumstance aliunde, though asserted to be the rule in the English courts, and established by high authority, has not been followed in the United States, and it has been gravely doubted whether the cases referred to, to sustain the English doctrine, are sufficiant for that purpose, it appearing upon an examination, that in every case, there were corrobo[376]*376rating circumstances, with but one exception, and in that even (Wheeling's case, 1 Leach, 311) the statement of what the court decided is in terms so general that it is not necessarily inconsistent with there having been corroborating circumstances as to the corpus delicti, if not as to the criminal agency of the Defendant. 2 Russ. on Crimes, 825, and note (b), and cases there reviewed. But however this may be, the recognized doctrine in this country has been that the prisoner’s confessions are insufficient for his- conviction, without other proof that the crime has been committed. (Greenleaf's Ev. 251, and cases cited in Defendant's 'brief.) This doctrine, as remarked by Greenleaf, accorded better with the humanity of the criminal Code, and with the great degree of caution applied to receiving and weiging the evidence of confessions in other cases. But though the doctrine is laid down thus broadly the courts nevertheless, in applying it, were satisfied with corroborating circumstances merely ; holding that full proof of the corpus delicti was unnecessary, and often that slight corroboration was sufficient. 16 Wend. 53; 15 Wend. 148.
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Emmett, C. J..
By the Court. The prosecution gave in evidence on the trial, several distinct voluntary confessions or declarations made by the Defendant, of the agency or participation he had in the crime charged in the indictment. In the confession made to the witness Ellslayer, he admitted that he had tilled his wife, by throwing her against a block or log of the house, and then striking her with an axe, and gave as a reason for killing her that she had set some hay on fire, and then was the best time to get her out of the way. He further said that he and one Klaas Hghlman afterwards placed her body upon a horse and carried it about a half mile to an ice house, which they then set on fire, and the same night, after the fire was over, buried the remains. These statements were made at a time when Defendant was endeavoring to persuade the witness to assist in removing the body to a safer place.
In the accounts which the Defendant gave to the witness Oapt. Morton, he said that his wife was up stairs crying, and he called to her to come down, but she would not come. That he then went up and got hold of her to bring her down, and While so doing, she fell down the stairs and was killed. At other times he told this witness that his wife had struck him over the head with something. He also stated to him that when he found his wife was dead, he was frightened and had put the body in the ice house to avoid the stench.
In corroboration of these confessions, the prosecution showed that the charred remains of a human body, together with pieces of a female’s dress, recognized by a witness as that worn by Mrs. Laliyer when last seen alive, and two or three [374]*374hair pins, were afterwards found buried as designated by the Defendant, under the ruins of the ice house. It also appeared that the Defendant and his wife lived unhappily together, and that he was desirous of getting rid of her. That she had disappeared from the neighborhood, and had not been seen since the day preceding the night on which the ice house was burned, and further, that a neighbor whose hay had been destroyed by fire just previous to Mrs. Laliyer’s disappearance had been told by the Defendant that his, Defendant’s, wife had set the hay on fire.
We cannot repeat all the evidence. Suffice it to say that the only direct evidence of the Defendant’s criminal participation in the death of his wife is to be found in his own declarations. This being the case, it was for the jury to determine which of his several statements, if either, was the true one. The jury, however, were not bound to take as true the statement most favorable to the prisoner, nor indeed anything he may have said in his own favor, merely because the State used it against him. They might have rejected as improbable, or inconsistent with all the circumstances of the case, any one of these confessions, or any portion thereof. But inasmuch as the several statements were before the jury, and were relied on to connect the Defendant with the crime charged, it was all important to him, that all that he had said should be taken into-consideration, and acted upon by the jury, that he might have the benefit of whatever he may have said in his own favor which the jury should find to be true.
The Judge, however, charged the jury “that there was no testimony in the case which would warrant the finding of the Defendant guilty of manslaughter.” “ That he must be found guilty, or acquitted.”
This charge we think is erroneous, becáuse' it left the jury at liberty to infer that they were not to take into consideration the statements made by the Defendant to Capt. Morton, or that they were untrue in the opinion of the court, of that being true, the facts therein confessed constituted the crime of murder in the first degree. Either of these inferences would be manifestly to the prejudice of the prisoner.
If the crime was committed in the manner stated in the [375]*375confession made to tlie witness Ellslaycr, the Defendant is guilty of murder in the first degree, for the facts therein admitted show the hilling to have been perpetrated with a premeditated design to effect death. But if either of the statements made to Oapt. Morton be the true history of his conduct, then the homicide would amount to manslaughter only; for whether the killing was voluntary by throwing the deceased down the stairs in the heat of passion during a scuffle or fight which may have ensued after she struck the prisoner over the head, (as unfavorable a view perhaps as the statements will bear,) or involuntarily, while the Defendant was engaged in an unlawful attempt to bring her down by force, still it would not be murder, there being no evidence of a premeditated design to effect her death.
So long, therefore, as it was doubtful which of these several statements, if either, contained the true account of the Defendant’s agency in his wife’s death, so long was it uncertain of what crime and in what degree he was guilty. These doubts it was the province of the jury to solve under the charge of the court, and if they had reasonable ground of doubt, of which crime, or in what degree, he was guilty, they could convict of the lowest only. Com. Stat. 782, Sec. 2.
Among the numerous questions raised in this case, was one involving the interpretation of Sec. 6, Chap. 118 of the Compiled Statutes, page 782. The section is as follows:
“A confession of a Defendant, whether made in the course of judicial proceedings or to a private person, cannot be given in evidence against him, when made under the influence of fear produced by threats, nor is it sufficient to warrant his conviction, without proof that the offence charged has been committed.”
The doctrine that a confession duly made and satisfactorily proved is sufficient alone to warrant a conviction, without any corroborating circumstance aliunde, though asserted to be the rule in the English courts, and established by high authority, has not been followed in the United States, and it has been gravely doubted whether the cases referred to, to sustain the English doctrine, are sufficiant for that purpose, it appearing upon an examination, that in every case, there were corrobo[376]*376rating circumstances, with but one exception, and in that even (Wheeling's case, 1 Leach, 311) the statement of what the court decided is in terms so general that it is not necessarily inconsistent with there having been corroborating circumstances as to the corpus delicti, if not as to the criminal agency of the Defendant. 2 Russ. on Crimes, 825, and note (b), and cases there reviewed. But however this may be, the recognized doctrine in this country has been that the prisoner’s confessions are insufficient for his- conviction, without other proof that the crime has been committed. (Greenleaf's Ev. 251, and cases cited in Defendant's 'brief.) This doctrine, as remarked by Greenleaf, accorded better with the humanity of the criminal Code, and with the great degree of caution applied to receiving and weiging the evidence of confessions in other cases. But though the doctrine is laid down thus broadly the courts nevertheless, in applying it, were satisfied with corroborating circumstances merely ; holding that full proof of the corpus delicti was unnecessary, and often that slight corroboration was sufficient. 16 Wend. 53; 15 Wend. 148. Hence, notwithstanding the humanity claimed for the rule, its application was such as not always to afford the protection necessary to persons accused. It has not unfrequently happened that persons have been convicted upon their own confessions, of crimes of which they were innocent, and instances have occurred where they have even confessed to murders never committed. Numerous cases of this kind are cited in the books, one of the most remarkable of which is that of the two Booms, referred to by the Defendant’s counsel. 1 Greenleaf's Ev. Sec. 214. In that case there was a full confession of the murder by one of the accused, corroborated by the finding of concealed bones, and by other facts calculated to verify the confession. And yet it afterwards appeared that the person confessed to have been murdered was still alive. The bones found, proved to be those of an animal, and it appeared that the accused had been induced to make the confession- by the advice of a- friend in the hope of securing through the clemency of the Governor of the State, the mitigation of his sentence from death to imprisonment for life.
Such sad instances of man’s weakness in view of great pun[377]*377ishment, not only demonstrated the unreliable character of confessions in general, but weakened confidence in any rule which was satisfied with less than proof of the commission of the offence charged, by evidence outside of the prisoner’s confessions ; and suggested the necessity of a change.
We think that the section above set forth was intended to correct the defects which experience had shown to exist in the law as it formerly stood, and to provide an additional protection to persons accused of crime. The language, too, seems apt and appropriate to effect this end, and can mean nothing else unless we take the responsibility of holding that the word “proof” is not used in its ordinary legal acceptation. Evidence, though it may tend to prove a fact, may yét be very far from demonstrating its existence. If by proof was meant corroboration merely, the rule in that particular would not be changed. Had the legislature meant evidence only, they would have made use of other terms, as was done in the very next section but one, where it was provided that a person cannot be convicted on the testimony of an accomplice merely, unless he be corroborated by such other evidence as tends to convict the Defendant of the commission of the offence. The distinction between proof and evidence is fully recognized in these two sections. In the former full proof is necessary, in the latter evidence tending only to convict is sufficient. To prove then that the offence charged, whether murder, arson, larceny or other crime, has been committed, is to demonstrate, not that a murder, arson, or larceny, but that the particular murder, or other crime has been committed by some one — and applying the section to this indictment, it requires that evidence be produced, outside of the Defendant’s confessions, sufficient to induce belief, not only that Hannah Laliyer is dead, but that her death was caused by the criminal agency of another. And, in view of what we believe to have been the object of the Statute, and the general rule in criminal cases, we hold that the existence of these facts should be established beyond a reasonable doubt. The offence is separable from the guilty agent; and -although a prisoner may be convicted on his own voluntary declarations as to his agency, or participation in a crime, yet the law humanely requires that it shall first be satisfactorily proved by [378]*378other evidence, that the crime has actually been committed.
It does not follow, however, that facts ascertained by reason of a prisoner’s disclosures are not to be taken into consideration in establishing the corpus delicti. On the contrary, it is well settled that a fact so discovered, may, together with the fact that the disclosures of the accused led to its discovery, go to the jury.
Nor do we mean to be understood as holding that the corpus delicti must be established beyond a reasonable doubt, before evidence can be introduced of the prisoner’s confessions. The order of testimony must always greatly depend upon the discretion of the court. This discretion cannot be controlled by any fixed rules, nor is it desirable to do so, as the order of testimony must to some extent vary with every case. The most that can be done in any case is to determine afterwards whether this discretion has been exercised in a manner prej udicial to the prisoner. If there be no evidence that the crime has been committed, then of course it would be improper to admit the confessions of the accused. But when there is evidence from which a jury might reasonably infer the commission of the offence charged, then we think a sufficient foundation has been laid for admitting the voluntary confessions of the prisoner, the prosecution, however, being still held to the production of the proofs requisite to warrant a conviction. Any other course would result in most cases in substituting the court for the jury in determining these important facts. Where there is an entire failure of proofs this would not be objectionable, and is perhaps oftentimes necessary to protect the accused against any prejudice engendered by suspicious circumstances, but where, as is usually the case, the proofs depend in any degree upon the weight of evidence, or the credibility of witnesses, the jury alone, under the charge of the court, should determine whether the crime charged has been committed.
The order refusing a new trial is reversed and a new trial awarded.