All the facts and circumstances taken together as proved must not only be consistent with the inference that the accused is guilty. but they must at the same time be inconsistent with the hypothesis that he is innocent and with every other rational hypothesis.10 Where the only incriminating evidence for the prosecution is circumstantial, it is the duty of the court to instruct upon the 10 State v. Johnson, 19 Iowa 230; State v. Miller, 9 Houst. (Del.) 564, 571, 32 Atl. 137; Echols v. State, 81 Ga. 696, 699, 8 S. E. 443; Green v. State, 51 Ark. 189, 10 S. W. 266; Findley v. State, 5 Blackf. (Ind.) 576, 579, 36 Am. Dec. 557; James v. State, 45 Miss. 572, 575; State v. Asbell, 57 Kan. 398, 46 Pac. 770; People v. Ward, 105 Cal. 335, 38 Pac. 945; State v. David, 131 Mo. 380, 33 S. W. 28; Jones v. State, 34 Tex. Cr. App. 490, 30 S. W. 1059; State v. Avery, 113 Mo. 475, 495, 21 S. W. 193; State v. Miller, 100 Mo. 606, 626, 13 S. W. 832, 1051; Commonwealth v. Goodwin, 14 Gray (Mass.) 55; Chitister v. State, 33 Tex. Cr. App. 635, 638, 28 S. W. 683; State v. Hunter, 50 Kan. 302, 306, 32 Fac. 37; Kennedy v. State, 31 Fla. 428, 12 So. 858; State v. Davenport, 38 S. Car. 348, 352, 17 S. E. 37; Carlton v. People, 150 Ill. 181, 37 N. E. 244, 41 Am. St. 346; Gannon v. People, 127 Ill. 507, 521, 21 N. E. 525, 11 Am. St. 147; Commonwealth v. Costley, 118 Mass. 1; Coleman v. People, 26 Fla. 61, 71, 7 So. 367; Lancaster v. State, 91 Tenn. 267, 18 S. W. 777; State v. Keeler, 28 Iowa 551, 553; People v. Foley, 64 Mich. 148, 31 N. W. 94; Wright v. State, 21 Neb. 496, 32 N. W. 576; People v. Aiken, 66 Mich. 460, 33 N. W. 821, 11 Am. St. 512; Cavender v. State, 126 Ind. 47, 48, 35 N. E. 875; United States v. Reder, 69 Fed. 965; Hamilton v. State, 96 Ga. 301, 22 S. E. 528; Smith v. State, 35 Tex. Cr. App. 618, 33 S. W. 339, 34 S. W. 960; Howard v. State, 108 Ala. 571, 18 So. 813; Wantland v. State, 145 Ind. 38, 43 N. E. 931; State v. Hart, 94 Iowa 749, 64 N. W. 278; Webb v. State, 73 Miss. 456, 19 So. 238; Baldez v. State, 37 Tex. Cr. App. 413, 35 S. W. 664; State v. Moxley, 102 Mo. 374, 14 S. W. 969; People v. Shuler, 28 Cal. 490, 496; Morgan v. State, 51 Neb. 672, 71 N. W. 788; Sherrill v. State, 138 Ala. 3, 35 So. 129; Neilson v. State, 40 So. 221, 146 Ala. 683 (not reported in full); Duckworth V. State, 83 Ark. 192, 103 S. W. 601; State v. Tilghman (Del.), 63 Atl. 772; State v. Emory, 5 Penn. (Del.) 126, 58 Atl. 1036; Mangum v. State, Ga. App. 63 S. E. 543; Long v. State, Ga. App. 62 S. E. 711; Campbell v. State, 123 Ga. 533, 51 S. E. 644; State v. Sweizewski, 73 Kan. 733, 85 Pac. 800; State v. Terrio, 98 Me. 17, 56 Atl. 217; State v. Psycher, 179 Mo. 140, 77 S. W. 836; State v. Francis, 199 Mo. 671, 98 S. W. 11; State v. Morney, 196 Mo. 43, 93 S. W. 1117; Shumway v. State, Neb. -, 117 N. W. 407; Sweet v. State, 75 Neb. 263, 106 N. W. State v. Hutchings, 30 Utah 319, 84 Pac. 893; Schwantes v. State, 127 Wis. 160, 106 N. W. 237; State v. Abbott, W. Va. - 62 S. E. 693; State v. Trail, 59 W. Va. 175, 53 S. E. 17; United States v. Cole, 153 Fed. 801; United States v. Breese, 131 Fed. 31; nature of circumstantial evidence and upon the rules of law regulating it." If, however, there is some direct evidence in the case for the state which would be sufficient, if believed by the jury, to show the prisoner's guilt, an instruction on circumstantial evidence need not be given, though there be circumstantial evidence in the case.12 For example, if the confession of the accused is direct evidence of his guilt an instruction on circumstantial evidence is not required.13 An instruction that circumstantial evidence must be clear, convincing and conclusive, excluding all rational doubt as to the prisoner's guilt, and that from the material and necessary circum 915; Bryant v. State, 116 Ala. 445, 23 State v. Wooley, So. 40; Medley v. State, Ala., 47 So. 218; Thayer v. State, 138 Ala. 39, 35 So. 406; Bones v. State, 117 Ala. 138, 23 So. 138. The rule of the text is applied to the facts which are found by the jury after they have heard the evidence for and against the accused and determined what is true and what is untrue. It should be applied not to the items of evidence themselves, as these are given by the witness. State v. Kidwell, 62 W. Va. 466, 59 S. E. 494. The state is not restricted to direct proof of the date of the offense. Taylor v. State, 62 S. E. 1048; Elliott Ev., § 2709. "Gilmore v. State, 99 Ala. 154, 13 So. 536; Jones v. State, 105 Ga. 649, 31 S. E. 574; State v. Cohen, 108 Iowa 208, 78 N. W. 857, 75 Am. St. 213. "Welch v. State, 124 Ala. 41, 27 So. 307; Vaughan v. State, 57 Ark. 1, 20 S. W. 588; People v. Burns, 121 Cal. 529, 53 Pac. 1096; Langdon v. People, 133 Ill. 382, 408, 24 N. E. 874; State v. Mitchell (Iowa), 116 N. W. 808; State v. Robinson, 117 Mo. 649, 663, 23 S. W. 1066; State v. Donnelly, 130 Mo. 642, 32 S. W. 1124; Purvis v. State, 71 Miss. 706, 14 So. 268; Mo., 115 S. W. 417; State v. Calder, 23 Mont. 504, 59 Pac. 903; Barnards v. State, 88 Tenn. 183, 12 S. W. 431; Granado v. State, 37 Tex. Cr. App. 426, 35 S. W. 1069; Ellis v. State, 33 Tex. Cr. App. 86, 87, 24 S. W. 894; White v. State, 32 Tex. Cr. App. 625, 25 S. W. 784; Wampler v. State, 28 Tex. App. 352, 353, 13 S. W. 144. 13 Green v. State, 97 Ala. 59, 12 So. 416, 15 So. 242; Perry v. State, 110 Ga. 234, 36 S. E. 781; State v. Robinson, 117 Mo. 649, 23 S. W. 1066; Mathews v. State, 41 Tex. Cr. App. 98, 51 S. W. 915. "Despite the fact that inferences drawn from circumstances may be and often are erroneous, circumstantial evidence may be, and in many cases is, as conclusive and convincing as the direct and positive testimony of eye-witnesses. Where it is strong and satisfactory to the jurors it is their duty to act on it. They should give it its just and fair weight, and if upon a candid, careful and guarded judgment of all the circumstances proved they are convinced of the guilt of the accused it is their duty to convict him. They may not go outside of the facts and circumstances proved to fancy others which stances his guilt must be established beyond a reasonable doubt, is correct.11 An instruction that before the accused can be convicted upon circumstantial evidence alone the facts must form a complete chain and point to, his guilt and must be irreconcilable with any reasonable theory of his innocence, and that the facts must be such as to exclude to a moral certainty every hypothesis but that of his guilt, is a sufficient charge on the law of circumstantial evidence.15 § 7. Circumstantial evidence to prove corpus delicti in trial for homicide. The rule seems at one time to have prevailed that a conviction could not be sustained, so far as a charge of homicide was concerned, unless the corpus delicti was proved by direct evidence, which in such case necessitated the finding of the victim's body. As an objection of considerable force it has been urged that this rule offers a premium on homicide by proclaiming to assassins that they will be safe from punishment if they shall succeed in utterly destroying the corpses of their victims by fire or chemicals, or by sinking them to a great depth in the ocean, so that they cannot be identified by direct evidence.17 may point to his innocence, but are 274. The expression corpus delicti to base the verdict upon the reason- has been somewhat loosely employed able inferences drawn from the cir- to mean two separate and distinct cumstances proven that reasonable things. In its original and primary men would entertain. If all infer- sense, it means the fact that a ences thus made are consistent with crime has been committed and is the guilt of the prisoner and incon- thus defined by Webster's Dictionary sistent with his innocence, then they and in Starkey on Evidence, § 575must convict him." State v. Elsham, The fact that a crime has been com70 Iowa 531, 31 N. W. 66. mitted is usually not so much a fact as an inference from other facts which are divided into two classes, 14 State v. Wilcox, 132 N. Car. 1120, 44 S. E. 625. 15 State v. Sharpless, 212 Mo. 176, the first of which is the facts constiIII S. W. 69. tuting the circumstances or event 10 1o 2 Hale P. C. 290; Rex v. Burdett, aside from any personal agency in it, 4 B. & Ald. 95. "United States v. Gibert, 2 Sum. (U. S.) 19, 27, 25 Fed. Cas. 15204; State v. Williams, 7 Jones (N. Car.) 446, 454, 78 Am. Dec. 248n; State v. Westcott, 130 Iowa 1, 104 N. W. 341; Miles v. State, 129 Ga. 589, 59 S. E. and second, the existence of a criminal and personal agency or element. People v. Jones, 123 Cal. 65, 55 Pac. 698; Pitts v. State, 43 Miss. 472; Ruloff v. People, 18 N. Y. 179. Beside this and particularly in relation to the crime of homicide, the words There are many cases, however, which do not require such direct and strict proof of corpus delicti, but allow it to be proved by circumstantial evidence if sufficiently clear and cogent to convince the jury beyond a reasonable doubt in connection with the other evidence.18 This would be the case where it is proved by direct evidence that the body of the person murdered had been thrown overboard and never subsequently recovered;19 or where the body has been wholly or partly consumed by fire.20 Such cases may, however, be regarded as exceptions to the general rule which is applicable and usually, if direct evidence exists of the death of the victim of the homicide, it will be required.21 A broader, more accurate and more inclusive statement of the general rule would be that the corpus delicti of homicide must be proved either by showing that the party alleged to have been killed is actually dead by proof of the finding and identifying his corpse, or by showing that the murder was accomplished or accompanied by the employment of violence in such a manner as to sufficiently account for the disappearance of the body and render have required a secondary meaning: Then they mean the dead body or remains of the victim of the homicide. It is in the secondary sense that the word is used in the text and in the cases which are cited to support it. See Burrill Law Dictionary; Wharton's Crim. Evid., § 325, and Burrill on Circumstantial Evidence 119. 18 Zoldoske v. State, 82 Wis. 580, 52 N. W. 778; Rex v. Burdett, 4 B. & Ald. 95; Lightfoot v. State, 20 Tex. App. 77-100; Johnson v. Commonwealth, 81 Ky. 325; State v. Dineen, 10 Minn. 407; State v. Keeler, 28 Iowa 551, 553; Anderson v. State, 20 Fla. 381; State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312; State v. Williams, 7 Jones (N. Car.) 446, 453, 78 Am. Dec. 248n; State v. Gillis, 73 S. Car. 318, 53 S. E. 487, 5 L. R. A. (N. S.) 571n; Schwantes v. State, 127 Wis. 160, 106 N. W. 237. A statute which requires direct proof of the death of a person alleged to have been killed does not exclude evidence of circumstances indicating identity, People v. Palmer, 109 N. Y. 110, 16 N. E. 529, 4 Am. St. 423, or evidence of resemblance of features between a mutilated body which was found and the person alleged to have been killed. People v. Beckwith, 108 N. Y. 67, 15 N. E. 53. direct evidence of its whereabouts or appearance impossible to be obtained. So it has been held in a case of homicide where the body of the victim was destroyed that it was not necessary to prove, beyond a doubt, the precise means by which his death was produced.22 The evidence of an accomplice is always admissible to prove the corpus delicti of homicide and if it is corroborated, even by the confession of the accused, it may be sufficient. 23 But in every case of homicide, if a body is found or if any remains are found, they must be identified as those of the victim. The disappearance of the person supposed to have been killed with circumstantial evidence of the guilt of the accused, will not sustain a conviction if the body is not identified.2* § 8. Distinction between civil and criminal proceedings as regards relevancy and manner of proof.—It has been remarked, both by the writers of text-books and in the adjudications, that "there is no difference in the rules of evidence between civil and criminal cases; what may be received in the one may be received in the other; what is rejected in the one will be rejected in the other.”25 And such a rule would seem to be not only just and logical, but necessary when we consider that the sole object of evidence is the ascertainment of truth; in other words, that every species of evidence is merely a means towards an end, and that end the establishment or discovery of facts unknown or disputed. However universal such a principle of uniformity may have been in the 22 Smith v. Commonwealth, 21 Gratt. (Va.) 809, 820; Pitts v. State, 43 Miss. 472, 481; State v. Keeler, 28 Iowa 551, 553; Lancaster v. State, 91 Tenn. 267, 18 S. W. 777; Ruloff v. People, 18 N. Y. 179; State v. Winner, 17 Kan. 298; State v. Dickson, 78 Mo. 438; State v. Davidson, 30 Vt. 377, 386, 73 Am. Dec. 312; State v. Barrington, 198 Mo. 23, 95 S. W. 235; Schwantes v. State, 127 Wis. 160, 106 N. W. 237. See, also, post, § 338a. Follis v. State, 51 Tex. Cr. App. 186, 101 S. W. 242. 23 "Walker v. State, 14 Tex. App. |