that the evidence itself is important to the ends of justice, and that the element of self-interest affords a reasonably safe substitute for the oath and cross-examination as a guaranty of truth." This statement sums up very well the basis of the exception as to statements against interest as given by Mr. Wigmore. The exception as thus stated is of course as applicable to criminal as to civil cases, but particularly since the Sussex Peerage case in 18445 the exception has been generally stated, both in England and in America, as applying only to statements against pecuniary or proprietary interests. It is difficult to understand the reason for this restriction of the exception unless it is because of the almost exclusive use of the exception originally in legitimacy and other cases concerning estates, in which cases the statements, if against interest at all, were quite naturally against pecuniary or proprietary interest, for these alone were involved." If the statement was really against the interest of the declarant it would seem that it should make no particular difference of what sort the interest was. Or if the truth of the statement is to be measured by the extent of the interest, then admissions which would cost the declarant his life or send him to the penitentiary should command first consideration, as being far more "against interest" than those against mere pecuniary or proprietary interest. The very basis of the exception is the desire to use all safe evidence procurable in the search for the truth; and certainly the truth is as important and as much for the State's honor in trials involving the life and liberty of its citizens as in those involving only their property. As the Virginia Supreme Court said in this case, "In neither class [of cases] can the exception apply when original testimony by the declarant is available; but, when it is not, every reason which justifies the exception in the latter class justifies it in the former. The relevancy is as clear, the necessity as great, and the guaranty of truth as potent." In fact the exception is even now allowed the prosecution in criminal cases; dying declarations by the victim are admissible in homicide cases,' and admissions of the accused in any criminal suit are admitted on the ground that the accused is not available as a witness against himself and the fact that the statement is against his interest insures trustworthiness. 10 The result seems a clear discrimination against the accused.

It is suggested on the above grounds that even could it be shown that the exception in favor of relevant statements against interest was always limited to statements against pecuniary or proprietary interest, and as has been intimated this does not appear in any way from the early history or principle of the exception," nor the state

'Principal case, at p. 847.

43 Wig. Ev. (2d. ed.), secs. 1421, 1455, 1457. For history of the hearsay rule and the exception, see idem, secs. 1362, 1364, 1420.

'II Cl. and F. (Eng.) 85, 109 (1844).

Supra, n. 1.

73 Wig. Ev. (2d ed.), sec. 1476.

Principal case, at p. 849.

93 Wig. Ev. (2d ed.), sec. 1432.

10 Idem, sec. 1475; Levison v. State, 54 Ala. 520 (1875).

11 Supra, n. 4.

ment of it, until about the time of the Sussex Peerage case, even so, is there any reason why it should not be extended to criminal cases? The risk of abuse is no doubt, as the upholders of the limitation of the exception assert, greater in criminal than in civil cases, but is not also the need? As Professor Wigmore says, "This is the ancient rusty weapon that has always been drawn to oppose any reform in the rules of Evidence, viz., the argument of danger of abuse. This would be a good argument against admitting any witnesses at all, for it is notorious that some witnesses will lie and that it is difficult to avoid being deceived by their lies. The truth is that any rule which hampers an honest man in exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an innocent."12 Another strong condemnation of this limitation of the exception is found in Justice Holmes' dissent to the Donnelly case, 13 in which Justices Hughes and Lurton concurred. After pointing out that there was then no precedent binding the court," and that we are not bound by the English rule since our separation, he says, "the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which would be let in to hang a man (Mattox v. U. S., 146 U.S. 140); and when we surround the accused with so many safeguards, some of which seem to me excessive, I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight." Thus are summed up concisely and with force the arguments in favor of the extension, or perhaps better, the interpretation, of the exception so as to allow its application to criminal as well as to civil cases. Certainly the majority rule as it now is seems as indefensible as it is unjust, and it is sincerely to be hoped that the progressive and sensible view of the Virginia Supreme Court in the main case may act as an entering wedge against it.

F. S. Wood.

Criminal Law: Evidence: Corpus Delicti: Confessions: Corroborative circumstantial evidence. These points are raised in the case of People v. Kirby, 194 N. W. (Mich.) 142 (1923), with the further question: how much corroboration of an accused's extra-judicial confession1 is necessary to establish a corpus delicti and sustain a conviction of the accused?

An illegitimate child was born. It disappeared. The grandmother of the child was arrested and indicted for its murder. The grand

123 Wig. Ev. (2d ed.), sec. 1477. 13 Supra, n. 2.

14This was strictly true. But see U. S. v. Mulholland, 50 Fed. 413, 419 (1892), which seems to be the only case cited in the majority opinion of this case which is really in point. This case discusses but refuses to follow the earlier case of Coleman v. Frazier, 4 Rich. Law (S. C.) 146 (1850), which admitted such evidence in a criminal suit.

15 Supra, n. 2, at p. 278.

This has no bearing upon an intra-judicial confession which is in effect a plea of guilty.

mother stated that the baby had died of neglect because she could not give attention both to the child and to her daughter, and that the daughter came first. There was also testimony by the attending physician, tending to show a wilful neglect on the part of the grandmother. Aside from these things there was no evidence to prove the death of the child or pointing to a criminal act by the defendant; the court, with three judges dissenting, discharged the defendant. There has been considerable misapprehension of this term corpus delicti. The component parts of a crime are essentially: (1) the occurrence of the specific kind of loss or injury, i. e., the death of the murdered victim; (2) criminality as the source of the wrong; (3) the identity of the doer of the crime. Corpus delicti in its orthodox sense seems to signify merely the first of these elements; but by many judges the term is made to include the second element also. 2 There can be no conviction unless the corpus delicti is proven. But such a statement as, "an accused murderer cannot be convicted unless the body of his victim is procured," is clearly misleading. In fact, this at one time was stated as a rule in the English law and in the civil law also. This was a rule given to prevent such tragedies, which have appeared in history, where the supposed murdered victim was found living after the accused had been executed. On the other hand, such a rule may shield the criminal who has been successful in concealing the body of his victim. The general principle, which may now be taken as established, adequately satisfies alike what common sense and public justice require. As a rule, proof of the finding of the body of the deceased is required. But this rule is not inflexible, as where the direct evidence brought before the jury is sufficiently strong to satisfy them that the murder has really been committed.

The court, in the principal case, rests its decision upon the hitherto widely accepted principle that an extra-judicial confession alone. cannot sustain a conviction, and the majority of the judges find that the confession was not sufficiently corroborated to justify the conviction of the defendant. While it is necessary to establish the corpus delicti to sustain a conviction, such proof is dependent upon the facts and circumstances of each case; there is no rule of thumb. For this reason it cannot be said here that the court erred in its decision, but it seems that the argument of the dissent is the better.

The sufficiency of an uncorroborated confession to sustain a conviction has been an open question for many years in England. In a few instances, it was hinted that such uncorroborated confession was sufficient to warrant a conviction; but "in each of the

2Wigmore, Evidence, sec. 2072.

Reg. v. Burdett, 4 B. & Ald. (Eng.) 95 (1820); 2 Hale P. C. 290. "Rex. v. Hindmarsh, 2 Leach C. C. (Eng.) 569 (1792);

"Wigmore, Evidence, sec. 2070. No case up to 1800 enunciated a rule and put the question beyond controversy.

Rex v. Wheeling, I Leach Cr. Law, (3rd ed.) 349, in note: "In the case of John Wheeling, tried before Lord Kenyon at the summer assizes at Salisbury 1789, it was determined that a prisoner may be convicted on his own confession, when proved by legal testimony, although it is totally uncorroborated by any other evidence."

English cases usually cited in favor of the sufficiency of this evidence, there was some corroborating circumstance." We have had growing out of this situation two proposed rules: (1) the corroborative evidence might be of any sort whatever; (2) it must specifically relate to the corpus delicti. Neither rule obtained a general following in England; the latter, however, tended to prevail in cases of homicide. In this country, the courts of each jurisdiction have adopted the rule which they have thought proper, but generally they have adopted the fixed rule that corroboration was necessary. But they differ as to the amount of corroboration of a confession necessary to sustain a conviction. Some jurisdictions hold that no line can be drawn, stating that some corroboration is necessary, but failing to indicate how much. Each case must stand upon its own footing." In most jurisdictions the stricter form of rule is taken, and the evidence must concern the corpus delicti.10 In every jurisdiction but one (New York)" and possibly another (Minnesota), direct or positive evidence of the facts tending to establish the corpus delicti is not required, but the same may be proved by circumstantial or presumptive evidence.12 In a few jurisdictions, the rule is not limited to evidence concerning the corpus delicti; the corroborating facts may be of any sort whatever, provided only that they tend to produce a confidence in the truth of the confession.13 In the principal case, the dissenting judges seem to accept this latter view.

The main issue is whether a given conviction is justified or not. To offer such justification, the jury must be satisfied beyond a reasonable doubt of the existence of every fact necessary to constitute the offense. It seems that the decision in the principal case should be on this ground, rather than to attempt to place it upon some fixed rule. It is not necessary that the evidence of the criminal act should be of that conclusive character in order to justify the admission of the defendant's confession. For the courts to lay down any definite rule is to put an obstacle in the way of justice and to afford a shelter for the unscrupulous. The warning necessary to safeguard the more liberal rule can easily and satisfactorily be given

"I Greenleaf, Evidence, sec. 217.

816 C. J. 735.

*

'Holsenbake v. State, 45 Ga. 43, 56 (1872): "We do not feel authorized to draw any line: The confession must be corroborated, but how far, and in what particulars, is not said; * *Each case must stand on its own footing." Bergen v. People, 17 Ill. 426 (1856); People v. Harrison, 261 Ill. 517 (1914); People v. Lapidus, 167 Mich. 53 (1911); Cohoe v. State, 82 Neb. 744 (1908); State v. Banusik, 84 N. J. Law 640 (1906).

10Winslow v. State, 76 Ala. 42 (1884); McLemore v. State, III Ark. 457 (1914); People v. Vertrees, 169 Cal. 404 (1915); Roberts v. People, 11 Colo. 213 (1888); State v. Hand, 1 Mary. (Del.) 545 (1894); State v. Dubois, 54 Iowa 363 (1880); State v. Young, 237 Mo. 170 (1911); People v. Roach, 215 N. Y. 592 (1915); Nolan v. State, 60 Tex. Cr. R. 5 (1910).

"N. Y. C. Crim. P. sec. 393; N. Y. Penal Code, sec. 181.

12 Flower v. U. S., 116 Fed. 241 (1902); State v. Hannibal, 259 Ill. 512 (1913). Griffith v. State, 163 Ind. 555 (1904); Messel v. State, 176 Ind. 214 (1911). 13People v. Jones, 123 Cal. 65 (1898); Patterson v. Commonwealth, 86 Ky. 313 (1887); Blackburn v. State, 23 Oh. St. 146 (1872); Gray v. Commonwealth, 101 Pa. 380 (1882).

by court and counsel, with sufficient force and clearness to be properly appreciated by jurymen of common intelligence.

The result which the court in the principal case has arrived at may be correct, for each case depends upon its own circumstances,14 but it seems that the underlying principle of decision should have been as put in a recent case. Where the confession of the defendant is introduced, evidence aliunde of the corpus delicti need not be such as alone to establish the fact beyond a reasonable doubt; but it is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the offense was committed and that the defendant committed it.15

Walter C. Garey.

Divorce: Remarriage statutes.-Statutes restricting the right to remarry after divorce are now common in many states.1 The extraterritorial effect of the Virginia statute, and the inapplicability of the equitable doctrine of "clean hands" when the guilty party seeks annulment of the subsequent marriage are affirmed in Heflinger v. Heflinger, 118 S. E. (Va.) (316) 1923.

Charles Heflinger secured a divorce from his wife in Virginia, and shortly thereafter married the defendant in Maryland. Both Charles and the defendant were residents of Virginia, and the ceremony in Maryland was merely an attempt to evade the Virginia remarriage provision. Charles filed a bill for annulment of the marriage on the ground that it was void under the laws of Virginia. The Court holds the Maryland marriage void, declares that the complainant's violation of the Virginia statute does not bar him from the relief, and decrees the annulment.

The obvious purpose of remarriage statutes is to remove one of the most frequent inducing causes for the bringing of divorce actions. Where evasion of a statute has been attempted by remarriage in another state, there is a great difference of opinion as to the extraterritorial effect of the prohibition. The weight of authority seems to uphold the marriage, despite the fact that the restrictions imposed by the state law are thereby rendered nugatory, since it is simply necessary to cross the state line to avoid the statute.3 As a fundamental rule a marriage valid where contracted is valid every

14Reg. v. Woodgate, 3 New Zeal. Ct. App. 320 (1877). Here the father confessed that he took an illegitimate child to the sea, drowning it. Its body was never found; there was no direct evidence to establish a criminal act; heldguilty.

15 Mangum v. U. S., 289 Fed. 213, 216 (1923).

1Note in I Texas L. Rev. 84.

2Code 1919, sec. 5113. "On the dissolution of the bond of matrimony for any cause arising subsequent to the date of the marriage, neither party shall be permitted to marry again for six months from the date of such decree, and such bond of matrimony shall not be deemed to be dissolved as to any marriage subsequent to such decree, or in any prosecution on account thereof, until the expiration of such six months."

Van Voorhis v. Brintnall, 86 N. Y. 18 (1881); Moore v. Hegeman, 92 N. Y. 521 (1883); and other cases cited in the principal case.