¶1 (dissenting).
¶2 I dissent. The certified question should be answered in the affirmative. There are three elements which must be proved beyond a reasonable doubt in order to permit that ansAver. It must be shown: (1) That a child Avas born; (2) that it was born alive; and (3) the corpus delicti must be proved, which, according to the majority opinion, requires proof of death and the fact of criminal agency on the part of the defendant. These will be discussed in order. It is conceded that a child was born, so that element need not be considered.
¶3*89 The evidence would support a finding that a child was born alive. First, there is the testimony of the nurse. In addition to that set forth in the majority opinion, it was shown by her testimony that the placenta delivered from Esther was examined carefully by the nurse; its weight Avas one pound and five ounces, indicating a child weighing from five to six pounds; it measured six by nine inches, evidencing that a full-term child had been born; the umbilical cord attached thereto Avas 22 inches long; the average cord is 20 to 22 inches in length. This nurse Avas an expert, having had a great amount of obstetrical experience. She testified that only one child in 70 is born dead from a normal birth, and that the conditions Avhich she found indicated a normal birth. Along Avith her testimony to the effect that in cases of normal delivery there is no odor or defect in the placenta, Avhich was true here, this evidence alone appears amply sufficient upon which to base a finding that the child was born alive.
¶4 2 Mason Minn. St. 1927, § 9814, protecting the privilege existing between a doctor and his patient, cannot be used as a basis to exclude this testimony. The nurse testified from facts Avhich she observed independently of her work Avith the doctor. Her observations Avere not the result of any order from the doctor, nor is there anything to indicate that the doctor even kneAV that the nurse Avas going to make those observations. The Avitness owned and operated the hospital. She Avas the only nurse employed therein. Everything she did, as far as her testimony goes, Avas at her own initiative. The statute referred to does not apply. Other states having-statutes of like wording reach this result. Meyer v. Russell, 55 N. D. 546, 214 N. W. 857; Culver v. Union Pac. R. Co. 112 Neb. 441, 199 N. W. 794; Southwest Metals Co. v. Gomez (C. C. A.) 4 F. (2d) 215, 39 A. L. R. 1416; Borosich v. Metropolitan L. Ins. Co. 191 Wis. 239, 210 N. W. 829. This Avould seem to be the desirable rule. 12 Minn. L. Rev. 390, 396.
¶5 That testimony itself was sufficient to satisfy the requirement that there be proof that the child was born alive, but. in addition to that there was the statement of Esther to the effect: “If I had knoAvn I Avas to have a baby I Avould have married Walter … *90 What will happen to babies Avhen they are not baptized and they die?” ObAdonsly this could mean only that the baby Avas born alive and then died. The jury Avas justified 'in so finding. This testimony Avas objected to as hearsay. If so it Avas a statement against interest and as such admissible. It long has been the general rule in Minnesota and other states that any statement made by a third person, relevant to the matter in issue, is admissible in evidence in actions betAveen other parties, when it appears that the declaration was against the declarant’s pecuniary or proprietary interests at the time it was made, related to a mutter of which he Avas personally cognizant, and that he had no probable motive to falsify and that the declarant is unavailable as a witness. Halvorsen v. Monn & Kerr Lbr. Co. 87 Minn. 18, 91 N. W. 28, 94 A. S. R. 669; 2 Dunnell, Minn. Dig. (2 ed. & Supps. 1932, 1934) § 3298; see 3 Wigmore, Evidence (2 ed.) § 1455, et seq. Where a statement is likely to result in criminal penalties on the part of the person making it, the statement is even more against the interests of the declarant than AAdien it is against only his pecuniary or proprietary interests. Often such a statement might be against the declarant’s pecuniary interests as well. An admission of having killed or injured a person, may, in some instances, result in the declarant having to respond in damages. Especially would this be true under the wrongful death statutes.
¶6 The declaration here Avas a statement against interest as subsequent events proved, for at the time of the trial Esther Avas in jail serving a sentence for concealing- the birth. The statement could be construed as an admission that there had been a birth. It is held in many states that statements against interest are not admissible unless they are against the declarant’s pecuniary or proprietary interests only. See 3 Wigmore, EAiclence (2 ed.) § 1476. HoAvever, such restriction has been universally condemned. 1 Elliott, Evidence, § 434; 36 Harv. L. Rev. 481; 37 Id. 156; The Luav of Evidence, Yale University Press, 1927; Thayer, Evidence, § 521; 3 Wig* more, Evidence (2 ed.) § 1477; People v. Toledo and Holgado, 51 P. I. 825. In the instant case there Avere ample safety factors. No reasonable mind would question the truthfulness of Esther’s state *91 ment. It Avas given under sucli circumstances as to preclude any possibility of fabrication. There is every reason to believe it. In a situation as this, where there is no chance of collusion, it has been held that such eAÚdence is admissible. Brennan v. State, 151 Md. 265, 134 A. 148, 48 A. L. R. 342.
¶7 It is suggested that the rule of some jurisdictions that statements against interest are not admissible unless the declarant is dead, see 3 Wigmore, Evidence (2 ed.) § 1455, et seq., precludes the use of Esther’s statement in this case. Esther Avas unavailable, in part, as a Avitness. She refused to testify to any matter material to the case, constantly exercising her privilege against self-incrimination. As held in Hines v. Commonwealth, 136 Va. 728, 117 S. E. 843, 35 A. L. R. 431, the requirement that the Avitness be unavailable before such statements are admitted thus Avas satisfied. There Avas just as much necessity for that evidence as there Avou’ld have been had Esther died before the date of the trial. Such an occurrence Avould not haAre impiwed the e\ridence. In this case the testimony of the nurse and the statement of Esther both Avent to prove that the child AAras born alive. It should not be required in this kind of a case that the state obtain conclusive proof of life. Such a requirement is unreasonable. Beyond a reasonable doubt is all that is necessary. The evidence here and all the circumstances amply did that.
¶8 The next question has to do Avith the coojms delicti. There can be no doubt but that there Avas a death. The pathologist of Avhom the majority opinion speaks testified that the fragments of bone taken from the stove in the room AAdiere Esther gave birth to the child contained a temporal bone from a skull. The Avitness could not say positively that the bone Avas from the skull of a human being, but he Avas certain that it Avas not from the skull of a fowl or any such animal; that it might be from a human skull and that if it Avere it was from the skull of an infant or small child. In Under-hill, Criminal Evidence (4 ed.) p. 1068, § 545, it is stated:
“If the circumstances point to the death of the person alleged to have been killed, the finding of fragments of a human body, or of tufts of hair … may be sufficient to establish the death.”
¶9*92 Here the state has proved even more than that. In 2 Wharton, Criminal Evidence (11 ed.) p. 1505, § 871, it is said that in case of destruction of the body, or in case of its disappearance, death may be proved circumstantially. The testimony of the pathologist, when considered in the light of the statements made by defendant, which are set out in the following paragraph, certainly proves that there was a death.
¶10 The only other question is one of criminal agency. The defendant refused to call a doctor the night the child was born even though Esther implored her to do so and there was a telephone in the house. The defendant, probably in order to conceal evidence, attempted unsuccessfully to get the placenta from the hospital. Shortly after the date of the birth the defendant and Esther were being questioned as to what had become of the body. The answer was to the effect'that thejr did not know “if they threw it in the stove, or in the toilet.” Esther was not out of bed during the entire night. Quite obviously, then, she could not have committed that reprehensible act. The defendant was the only other suspected person who was a party to this conversation. The jury might well draw an inference from that. Circumstantial evidence may be used to prove criminal agency. 2 Wharton, Criminal Evidence (11 ed.) p. 1501, § 870. When the sheriff was searching an outhouse for the body the defendant stated that “she was afraid that the cats had got in there and ate up the body.”
¶11 2 Mason Minn. St. 1927, § 10078, defines manslaughter in the second degree as homicide “committed without a design to' effect death ® …' by any act, procurement, or culpable negligence of any person, ® ….” It may be manslaughter to omit to perform a legal duty. Especially is this true in cases of the failure of a parent or others charged Avith the custody and care of children or other helpless and dependent persons to provide shelter, food, or medical attendance. State v. Staples, 126 Minn. 396, 118 N. W. 283. Here the defendant not only Avas guilty of “culpable negligence” in omitting to perform her legal duty, but also was guilty of acts of commission Avhich must have been the sole proximate cause of the death of thd child.
¶12*93 I think the question should be answered in the affirmative, or, at. the very least, there should be a new trial.