crime without actual proof of conspiracy." It would seem that evidence of the purchase or possession of the means of committing the homicide would only be relevant where the homicide was in fact committed by the use of such means, but it has been permitted to be proved that the accused purchased pistol cartridges where the crime was not committed with a pistol.95 If the body of the decedent shows incised wounds it is proper to permit the state to show that the accused was the owner of a knife, and had it a short time before the crime, though it is not identified as the weapon with which the crime was committed. And in one case evidence to show that the accused had access to a weapon with which the crime might have been committed was received." So it may be proved that the accused was familiar with the use of firearms. 98 But proof that the accused had in his possession, or attempted to procure a weapon, is not conclusive and in fact does not necessarily create any presumption that he intended to use it for criminal purposes. He may always show that the deceased had threatened him and other circumstances which would justify a plea of self-defense." The presence of

the accused in the locality of the crime, immediately prior to its commission, may be shown. But this fact possesses little value as evidence, unless coupled with a suspicious circumstance, as his being disguised, or armed, or his uttering threats against the deceased. 100

$337. Footprints. A comparison of footprints proved to have been made by the prisoner with other tracks or footprints found near the scene of the homicide is relevant, if a doubt arises on the evidence which was the slayer. But the opinion of a witness

Jones v. State, 137 Ala. 12, 34 So. Campbell v. State, 23 Ala. 44; People

v. McCurdy, 68 Cal. 576; Stokes v.

681. "Lillie v. State, 72 Neb. 228, 100 N. State, 5 Baxt. (Tenn.) 619, 30 Am. W. 316.

s Lillie v. State, 72 Neb. 228, 100 N. W. 316.

72; Dunn v. People, 158 Ill. 586, 42 N. E. 47; Dillin v. People, 8 Mich. 357; Murphy v. People, 63 N. Y. 590,

State v. Hough, 138 N. Car. 663, 595, 596; State v. Sanders, 75 S. Car. 50 S. E. 709.

409, 56 S. E. 35; Krens v. State, 75

that footprints near the scene of the crime were those of the accused not based on a comparison is not admissible. But the accused, by virtue of his constitutional immunity against being compelled to testify against himself, cannot be compelled to make an impression of his shoe or foot in some soft substance so that the footprints thus produced may be compared with others which have been discovered in the vicinity of the place of the homicide.3 If the accused voluntarily places his foot in a footprint near the scene of the homicide or permits his shoe to be placed in the track by a third person, the latter may testify to the result of the comparison and, where such testimony was given at the coroner's inquest in the presence of the defendant it may subsequently be proved at the trial.*

§ 338. Self-defense-Burden of proof-Malice.-In a murder trial if the homicide is denied, the burden of proving the crime beyond a reasonable doubt in all its constituent elements, i. e., the corpus delicti and the malicious intention is upon the state throughout." If the killing is proved or admitted by the accused, malice may be inferred from the circumstances already proved, and it is then incumbent upon the defendant to prove circumstances that will

Neb. 294, 106 N. W. 27, and § 372, burglary.

Du Bose v. State, 148 Ala. 560, 42 So. 862. Evidence of footprints of accused, 94 Am. St. 342, note; evidence of measurements of footprints, 53 Am. St. 383, note.

Stokes v. State, 5 Baxt. (Tenn.) 619, 30 Am. 72, and see § 372, where this subject is fully discussed.

'State v. Sanders, 75 S. Car. 409, 56 S. E. 35.

'People v. Coughlin, 65 Mich. 704, 32 N. W. 905, 9 West. 129; State v. Porter, 34 Iowa 31; State v. Wingo, 66 Mo. 181, 27 Am. 329; State v. Donahoe, 78 Iowa 486, 43 N. W. 297; People v. Riordan, 7 N. Y. Cr. 7; State v. Allen, 48 La. Ann. 1387, 20 So. 1012; King v. State, 74 Miss. 576, 21 So. 235; State v. Williams, 122

Iowa 115, 97 N. W. 992; State v. Teachey, 138 N. Car. 587, 50 S. E. 232; Commonwealth v. Deitrick, 221 Pa. 7, 70 Atl. 275. The burden is on the accused to show inability to retreat with safety and all the elements of self-defense. McBryde v. State, 156 Ala. 44, 47 So. 302; State v. Thrailkill, 71 S. Car. 136, 50 S. E. 551. In the case of State v. Quick, 150 N. Car. 820, 64 S. E. 168, it was said that an intentional killing with a deadly, weapon creates a presumption of malice and the crime is murder unless the facts subsequently proved either justify the killing or reduce it to manslaughter and that the burden is on the accused to show these facts though proof of such facts may arise out of the evidence against him.

excuse, mitigate or justify the killing, unless (and this exception is extremely important), the proof offered by the state tends to show the defendant was excused or justified. If circumstances are shown by the state from which, when uncontradicted or proved, a presumption of malice is drawn by the law as for example the intentional use of a deadly weapon, or an inference may be drawn by the jurors, it is considered that the state has satisfied the rule casting the burden upon it, and that the accused, if he wishes to exculpate himself by a plea of self-defense, must prove the facts on which his plea is based,' perhaps by a preponderance of the evidence."

The rule as here stated is perhaps equivalent in meaning to an instruction that the burden of proof is upon the defendant where he relies upon any distinct affirmative fact to exonerate him. Such an instruction has been supported by numerous cases where the fact relied on to obtain an acquittal was the insanity of the accused, or an assertion that the defendant killed the deceased under a reasonable apprehension that his own life was in danger." But the qualification may always be safely added that the defendant need not himself offer positive and affirmative evidence to sustain this burden. He should receive the benefit of all the evidence in the case, whether offered by him or by the state. If any fact proved against him by the prosecution satis

State v. Cephus (Del.), 67 Atl. 150; State v. Peterson, 149 N. Car. 533, 63 S. E. 87; State v. Walker, 145 N. Car. 567, 59 S. E. 878; People v. Tarm Poi, 86 Cal. 225, 24 Pac. 998; Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am. St. 96; State v. Yates, 132 Iowa 475, 109 N. W. 1005; Lawson v. State, 171 Ind. 431, 84 N. E. 974. Compare Nail v. State, 125 Ga. 234, 54 S. E. 145.

State v. Dillard, 59 W. Va. 197, 53 S. E. 117; State v. Skinner (Nev., 1909), 104 Pac. 223.

8

* State v. Jones, 20 W. Va. 764; Henson v. State, 112 Ala. 41, 21 So. 79; State v. Ballou, 20 R. I. 607, 40 Atl. 861; State v. Moss, 77 S. Car. 391, 57 S. E. 1098; Commonwealth v. Palmer, 222 Pa. 299, 71 Atl. 100, 128 Am. St. 809, 19 L. R. A. (N. S.) 483n; Hoffman V. Commonwealth (Ky., 1909), 121 S. W. 690; State v. Strother (S. Car.),66 S. E. 877.

9

Burden of proof as to insanity or self-defense, Elliott Evidence, §§ 3022, 3023, 3041, 3041a; self-defense, burden of proof of freedom from fault, 45 L. R. A. 687, note.

fies the jury that the killing was excusable or justifiable, the jury should acquit him.10 Any instruction, whatever its language, which in effect imposes an obligation upon the defendant of proving affirmatively that no crime was committed, constitutes reversible error, as it clearly deprives him of the benefit of the reasonable doubt which may arise on all the evidence.11

338a. The alibi of the alleged victim.-Not only must the state prove the death of some human being, but it must also prove that the identical human being named in the indictment as having been killed is dead as the result of some act of the accused. The fact that such a person is actually dead may, in the large majority of cases, be readily proved by the direct evidence of those who were his friends and acquaintances in life, and who have seen his corpse. In some exceptional cases such proof is impossible. The state in proving the corpus delicti and the identity of the deceased will then have to rely upon circumstantial evidence alone. Such proof is all that is available and necessary wherever the killing was procured or was accompanied by methods which resulted in a more or less complete destruction, by fire or otherwise, of the body of the alleged deceased;12 so that all that remains for purposes of identification is a handful of bones or a charred or decapitated corpse.

Where this happens the accused, while denying, and, perhaps, attempting to disprove the identity of the remains, also frequently alleges, directly or by inference, that the alleged victim of the homicide is alive.

That a man has disappeared suddenly from his accustomed haunts without having prepared for, or informed his associates of, his intended departure is by no means proof that he is dead. But evidence of a sudden and unexplained disappearance is always admissible and may be considered by the jury. If, however,

19 State v. Castle, 133 N. Car. 769, So. 497; State v. Hatch, 57 Kan. 420, 46 S. E. I. 46 Pac. 708, 57 Am. St. 337; State v. Crea, 10 Idaho 88, 76 Pac. 1013; State v. Pressler, 16 Wyo. 214, 92 Pac. 806; State v. Dillard, 59 W. Va. 197, 53 S. E. 117.

"Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. 44; People v. Downs, 123 N. Y. 558, 25 N. E. 988; Tweedy v. State, 5 Iowa 433; Gravely v. State, 38 Neb. 871, 874, 57 N. W. 751; Linehan v. State, 113 Ala. 70, 21 38-UNDERHILL CRIM. EV.

the state offers such evidence in connection with proof of the finding of the alleged remains of the deceased in such a condition as to render their identity in the least doubtful, it is competent for the accused to prove that the alleged deceased was not killed. The production of the person in court, provided he is properly identified, would, of course, be conclusive. This, however, is seldom attempted. Witnesses are usually introduced who testify that they are acquainted with the deceased, and that they have seen him alive at a date subsequent to the alleged killing. While there is nothing per se suspicious in such testimony, experience teaches us that such evidence can be readily fabricated without much danger of detection or punishment. But if, by such testimony, the accused shall succeed in raising a reasonable doubt of the death of the deceased he ought to be acquitted.1a

13 Ausmus v. People (Colo., 1910), 107 Pac. 204. Two curious and important cases recently pending in the courts of New York and Illinois illustrate the principles set forth in the text. In the case of the People v. Luetgert (tried in the city of Chicago) the accused was charged with killing his wife and with subsequently attempting to destroy her body by immersing it in powerful chemicals in a vat in a factory of which he was proprietor. The only proof of the corpus delicti offered by the state was a few bones, or portions of bones, and evidence that the woman had unexpectedly and unaccountably disappeared. The accused, to account for his wife's disappearance, endeavored to show that he and she had disagreed and that she had deserted him for the purpose of procuring a divorce. He also produced witnesses who swore, with

great positiveness, that they had seen a woman, whom they then identified as the missing wife, alive since the commission of the crime charged. In the New York case a woman, named Nack, was jointly indicted with her paramour, one Thorn, for the murder of Goldensuppe, her discarded lover. The woman, it was alleged, lured the deceased to a vacant house in a lonely and quiet suburb of New York city, where he was shot by Thorn and his body cut into three pieces. The severed portions of the trunk were carefully wrapped in oil cloth and cast into the river, where they were subsequently found and positively identified by the associates of the deceased. The head has never been found. In this case the defense was that Goldensuppe was still alive.

Proof of alibi under a charge of conspiracy to kill, 68 L. R. A. 222, note.