adopting the State‘s contention that, among other acts of the defendant, ―[t]he act of accepting payment to kill an individual . . . must certainly be considered to be [an] overt act[] in pursuance to the agreement‖
How later courts described this case
- adopting the State‘s contention that, among other acts of the defendant, ―[t]he act of accepting payment to kill an individual . . . must certainly be considered to be [an] overt act[] in pursuance to the agreement‖
- Although victim had been murdered, where conspirators had not received all their compensation, conspiracy was not finally terminated for purposes of applying rule that each statement or act of coconspirator up until the time the object of the conspiracy is completed is admissible
- “Absent any evidence of the corpus delicti of conspiracy, outside the extrajudicial confession itself, the conspiracy conviction founded on that confession cannot stand.”
- noting that all the elements of a completed offense need not be proven in a conspiracy case
Written by the judges who cited it.
The opinion
OPINION ON MOTION FOR REHEARING
ODOM, Judge.
Appellant asserts in his motion for rehearing that this Court on original submission incorrectly held that his extrajudicial confession need not be corroborated. We take this as a protest against the finding that the state had established the corpus delicti of the offense charged.
This Court stated in Smith v. State, 363 S.W.2d 277 , 279 that:
“It is well settled that a confession, alone, is not sufficient to support a conviction. It must be corroborated. There must be proof that the offense was com *43 mitted — that is, the corpus delicti must be proved. The confession may be used to aid in proving the corpus delicti but is not alone sufficient.”
For example, the corpus delicti of murder is a death caused by criminal means. A confession supported by such a showing would be sufficient to sustain a conviction for murder and the showing need not be entirely independent on the confession. Self v. State, Tex.Cr.App., 513 S.W.2d 832 .
In the instant case, however, the charge was not murder, but conspiracy to murder, and the corpus delicti is different. The conspiracy statute is aimed directly at the increased danger to society presented by criminal combinations. As the practice commentary accompanying V.T. C.A., Penal Code Sec. 15.02 states:
“[C]riminal conspiracy provides a means of striking against the special danger incident to group criminal activity and facilitates prosecution of the group by providing extraordinary evidentiary and procedural advantages.”
Section 15.02 holds that a person commits criminal conspiracy when, with felonious intent, he agrees with one or more persons to commit an offense and then one of the group does an overt act in pursuance of the agreement. Thus, the corpus delicti of conspiracy must contain a showing of agreement to commit a crime. In the instant case, there was no showing at trial beyond the confession itself that there had been an agreement to commit the murder. When there is no corpus delicti, a confession cannot stand. Smith v. State, 172 Tex.Cr.R. 407 , 361 S.W.2d 390 . Had there been some showing of concerted activity directed toward commission of the offense, or had someone come forward to testify as to the existence of the agreement, the confession would have been sufficient to sustain the conviction. Cf. Denny v. State, Tex.Cr.App., 558 S.W.2d 467 ; Delgado v. State, Tex.Cr.App., 544 S.W.2d 929 ; Helms v. State, Tex.Cr.App., 493 S.W.2d 227 ; White v. State, Tex.Cr.App., 451 S.W.2d 497 . Absent any evidence of the corpus delicti of conspiracy, outside the extrajudicial confession itself, the conspiracy conviction founded on that confession cannot stand.
The motion for rehearing is granted; the judgment of affirmance is set aside; the judgment of conviction is set aside and in view of the insufficiency of the evidence to support a finding of guilt, the judgment is reformed to show an acquittal. Burks v. U. S., 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 (1978).