Opinion
No. 34647.
November 10, 1941.
1. CRIMINAL LAW.
The corpus delicti may not be established solely by confession.
2. AUTOMOBILES.
In prosecution for operating a motor vehicle upon public highway while defendant was in a state of intoxication, undisputed testimony of witness for defendant that defendant was driver of automobile a few miles from scene of accident coupled with defendant's confession and all other evidence was sufficient to take issue whether defendant was driver of automobile to jury.
APPEAL from the circuit court of Forrest county, HON. F. BURKETT COLLINS, Judge.
E.F. Coleman, of Purvis, for appellant.
It is well settled in Mississippi jurisprudence that a conviction cannot be had on the statement or confession alone of the defendant; that is, the corpus delicti cannot be proven by the confession or statement of the defendant alone. We feel that this proposition of law needs no citation of authority, but we refer the Court to the following decisions: Pitt v. State, 43 Miss. 472; Murray v. State, 104 Miss. 296, 61 So. 315; Rayborn v. State, 115 Miss. 730, 76 So. 639; Floyd v. State, 138 Miss. 697, 103 So. 368.
The only evidence in the record as to who was driving the car in which appellant was riding on the occasion in question was the statement of the appellant himself that he was driving the car. We contend that the conviction of appellant was had upon his own confession as to the fact that he was driving the car, and no conviction can be had upon the confession of the appellant alone.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
The proof shows that the appellant was driving the car and his car collided with Mr. Foote's car in Forrest County, Mississippi. The contention that the proof that the appellant was driving the car was only by a confession of the appellant is not sustained because when the patrolman arrived at the place where the wreck occurred numbers of parties there in the presence of the appellant told the officers that the appellant was driving the car and he not only did not deny this fact when such statements were made in his presence, but admitted the same to be true. The fact that a statement was made in his presence that he was driving the car and not denied by him is competent evidence, as an admission or failure to deny a fact made in his presence, of which he had full knowledge, is independent of any confession.
Appellant was convicted of the charge of operating a motor vehicle upon a public highway when and while he was then and there in a state of intoxication. The only point requiring discussion is the contention by appellant that there is no proof in the record, other than by his own confession, that he was the driver of the car. He relies on the familiar rule that the corpus delicti may not be established solely by confession. Conceding for the purposes of this case that the point involves the corpus delicti and not merely the identity of the offender, we find that an undisputed witness for appellant testified that when the car left Purvis, a few miles from the scene of the accident, appellant was the driver. This renders it reasonably probable that appellant was the driver at the time charged, and this probability when coupled with the confession and all the other evidence was sufficient to take the issue to the jury. See the latest case on this subject, Gross v. State, 191 Miss. 383, 2 So.2d 818.
Affirmed.