explaining that the corpus delicti of larceny is not established by showing loss by the owner, access by the defendant, and the defendant’s unexplained disappearance and rather that, where circumstantial evidence was sufficient to establish the corpus delicti of larceny, some element of subsequent possession in the defendant of the stolen property was present
How later courts described this case
- explaining that the corpus delicti of larceny is not established by showing loss by the owner, access by the defendant, and the defendant’s unexplained disappearance and rather that, where circumstantial evidence was sufficient to establish the corpus delicti of larceny, some element of subsequent possession in the defendant of the stolen property was present
- holding that “the confession of an accused, not a part of the res gestae,” as well as a confession that is part of the res gestae of a crime, may be used to prove the commission of the corpus delicti of a crime
- recognizing that "unless the corpus delicti of the offense charged has been otherwise established, a conviction cannot be sustained solely on [the] extrajudicial confessions or admissions of the accused"
- setting forth the corpus delecti rule, which 8 provides that “unless the corpus delicti of the offense charged has been otherwise 9 established, a conviction cannot be sustained solely on [the] extrajudicial confessions 10 or admissions of the accused”
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING
CARMODY, Chief Justice. By motion for rehearing, defendant claims, for the first time, that his privilege against compulsory self-incrimination was violated by permitting the prosecutor to comment on his failure to take the stand.
The case having been tried before the de-cisión in Griffin v. State of California, 1965, 380 U.S. 609 , 14 L.Ed.2d 106 , 85 S.Ct. 1229 , the trial court instructed the jury to the effect that the failure of the defendant to testify shall create no presumption against him, although it may be the subject of comment or argument.
However, because of the appeal, the case has not been finally concluded and the Griffin rule is applicable. See Tehan v. United States ex rel. Shott, 1966, 382 U.S. 406 , 86 S.Ct. 459 , 15 L.Ed.2d 453 .
From the record before us, we are able to glean but little information as to what occurred. The instruction is in the record, but not the closing arguments of counsel. The arguments to the jury were not taken down by the court reporter, and therefore it is not known what comment was made by the prosecutor. The giving of the instruction itself was not error, as held by us in State v. Buchanan, decided March 14, 1966, N.M., 412 P.2d 565 ; and without the benefit of the prosecutor’s remarks, it is impossible to determine if there was any error. The only mention of this matter in the transcript occurred after the argument of counsel when the attorney for the defendant sought to make a rebuttal argument in response to the state’s final argument, contending that he was entitled to answer what had been said by the prosecutor with respect to the defendant’s not taking the stand. This request was refused, because the trial court stated that counsel for the defendant mentioned this subject in his own closing argument. Thus we see no error when the prosecutor’s comment- was made in response to the defendant’s own argument. Here, the defendant “opened the door” and effectively waived any right which he might have had to claim error because of the prosecutor’s comment concerning his failure to take the witness stand.
In all other respects, the motion for rehearing will be denied. It is so ordered.'
MOISE and COMPTON, J-T., concur.