¶1 (dissenting).
¶2 I do not think that the conviction, however right it might be in actual result, can be sustained on the record. For reasons to *97 be stated, I cannot agree that the clear mandate of 2 Mason Minn. St. 1927, § 9902, has been met by the state.
¶3 As a prelude and to clear the path for discussion of relevant points, it must be emphasized that the questions here are not whether we feel that the defendant is guilty or whether a new trial with additional evidence might well result in the same verdict. Rather the single question is whether the defendant has been convicted according to the provisions of law as enacted by the legislature in § 9902. This statute reads:
“A confession of the defendant shall not be sufficient to warrant his conviction without evidence that the offense charged has been committed.”
¶4 The self-evident purpose of the statute is to require the corpus delicti to be established by evidence other than the confession. This statute merely embodies in an inflexible manner the general rule that confessions are not in themselves sufficient to support a conviction unless there is evidence of the corpus delicti. 8 Minn. L. Rev. 343; People v. Kirby, 223 Mich. 440, 194 N. W. 142; State v. Laliyer, 4 Minn. 277 (368) ; 4 Wigmore, Evidence (2 ed.) § 2070; 7 R. C. L. p. 777. The philosophy of the statute is that this rule accords “better with the humanity of the criminal code.” State v. Laliyer, 4 Minn. 277, 283 (368). And while one may share the views of Dean Wigmore as to the lack of its needs or desirability, see 4 Wigmore, Evidence (2 ed.) § 2070, p. 406, since § 9902 is law in this state, we cannot disregard its intent and purpose by judicial whittling.
¶5 As has been pointed out by Dean Wigmore (Evidence [2 ed.] § 2072, p. 410), there are three elements in every crime: (1) The occurrence of the specific kind of loss or injury; (2) criminality as the source of the loss or injury; and (3) establishing that the accused is the doer of the crime. “Corpus delicti” refers only to the first. It merely means that the occurrence of the injury must be established or, in terms of the statute, that “the offense charged has been committed.” To include more in the definition is to render it a “juggling-formula.” Id. p. 411. That *98 this court has adopted this analysis and refused to sustain a conviction where the corpus delicti was not established by evidence extraneous to the statement of the defendant is apparent from State v. McLarne, 128 Minn. 163, 150 N. W. 787, 789, wherein it was said, speaking through Mr. Justice Holt, p. 167:
“Nowhere in the charge was the proposition presented to the jury whether the evidence established the corpus delicti apart from the defendant’s admission or so-called confession.”
¶6 With this preliminary, it is manifest that we must find in the record some evidence reasonably establishing the corpus delicti entirely apart from the confession, or else the conviction cannot stand.
¶7 I agree that under State v. Saporen, 205 Minn. 358, 285 N. W. 898, the extrajudicial statement of the prosecuting witness was not evidence but only impeaching testimony when introduced at the trial. Cf. 2 Wigmore, Evidence (2 ed.) § 1018. Under our law, this cannot supply the needed “evidence” and can be eliminated at this stage. Barren, then, is the record of any evidence of the corpus delicti unless the statement made to the municipal judge is sufficient to satisfy the statute. To this attention must focus.
¶8 That defendant’s statement to the municipal judge was a complete confession of guilt cannot be disputed. He expressly stated that he was guilty of the “thing that he was charged with.” In other words, it was a confession.
¶9 “A confession is defined as an acknowledgment of guilt of the crime charged or of the facts which constitute the crime; but it is an admission and not a confession if the facts acknowledged raise an inference of guilt only when considered with other facts.” Underhill, Criminal Evidence (4 ed.) § 265; 6 Minn. L. Rev. 524.
¶10 But whether we classify the statement as a confession or an “admission” under our law, the statement cannot be relied upon to establish the corpus delicti. This was held in State v. McLarne, 128 Minn. 163, 164, 150 N. W. 787. There McLarne was charged with having committed arson. The state introduced evidence *99 that defendant had been overheard saying to a third party, “I told you I burnt Pettis’ barn, but I think I can trust you.” The court said, 128 Minn. 167:
“It would seem that outside of the alleged admissions of defendant there was no evidence that the burning of the barn was the result of the criminal intent of anyone … Nowhere in the charge was the proposition presented to the jury whether the evidence established the corpus delicti apart from the defendant’s admission or so-called confession.”
¶11 A new trial was granted because the corpus delicti was not established by evidence extraneous to defendant’s statement. In arson cases the corpus delicti includes not only proof that the building burned but that the fire originated through a criminal agency. But that does not affect the authority of the case for purposes here. While it is true that in the McLarne decision there was not a second confession, the important thing is that the statement of the defendant was held to be within the statute. The exact parallel to the statement in the McLarne case is the defendant’s confession at the preliminary hearing. If it was within the statute in the one case, it seems self-evident that it is within the statute in the other. The simple 'fact is that the statute requires the corpus delicti to be established by evidence other than the defendant’s confessions, State v. Wylie, 151 Minn. 375, 186 N. W. 707, and that is true whether the defendant makes one or a dozen confessions. Whether this is a wise law is not for us to ponder. It is evident that each confession remains the same in nature irrespective of the repetition. Clearly, under the statute, the confession made to the county attorney was not sufficient. Consequently the sum total of the majority opinion is that while one confession will not satisfy the statute, two will. In other words, two confessions will establish the corpus delicti. Obviously, without judicial repeal, this is an impossibility under the statute and the McLarne decision. Reliance upon “conduct” will not aid solution. Nearly every statement entails some form of conduct. In addition, the conduct is completely consistent with *100 the confession. We are not dealing with questions of admissibility for it is clear that the statement is an exception to the hearsay rule. For that reason, the particular conduct here cannot be relied upon for it adds nothing in the situation here. All confessions involve conduct of some kind.
¶12 The majority opinion cites State v. Mamer, 139 Minn. 265, 166 N. W. 345. While I do not disagree with the rule there announced, I cannot see that the case makes any contribution. There defendant offered to plead guilty before a justice of peace to an offense over which the justice did not have jurisdiction. The plea was declined. On the trial the justice testified that such an offer was made. The court held that there was no error in admitting the evidence. A study of the original records shows that such testimony was received without objection and was not assigned as error. But even if we regard the case as so holding, it must be noted that there was ample evidence establishing the corpus delicti, and the decision so holds.
¶13 Emphasis is placed in the majority opinion on the question of admissibility of the statement made in the municipal court. Clearly it was admissible, but more properly after evidence of the corpus delicti had been introduced. The question here is not one of admissibility but rather — is there independent evidence of the corpus delicti?
¶14 My understanding of the statute is fortified by 2 Mason Minn. St. 1927, § 10223, a part of the gaming laws. It is there enacted that, “any person may be convicted for violation of this subdivision on his own confession out of court, or upon the testimony of an accomplice.” If such a statement were not otherwise within § 9902, why should this statute be necessary?
¶15 The major premise of the opinion is that the statement before the justice was sufficient to corroborate the confession. But this is not the question. The issue for decision is whether there was evidence from which the jury could find that the corpus delicti had been established to a reasonable degree. In determining this the statute requires that as a preliminary there must be evidence introduced tending to establish such a fact. The confessions, and *101 that is all we have here, cannot be used to establish the corpus delicti, although as a practical matter the evidence introduced on that point would be more likely given credence if there were a confession in the case as well. The'statute and the McLarne case prevent the statement before the municipal court from being used to establish the corpus delicti. If sufficient evidence of the corpus delicti is Introduced, it is immaterial whether the confessions are corroborated or not so far as § 9902 is concerned. The view of the majority results from the erroneous conception that the statement or confession made in the municipal court and the confession made to the county attorney taken together justify conviction. This is incorrect. What the statute requires is that the corpus delicti must be established independently of the confession. Otherwise there is a confusion of the elements involved.
¶16 Since all we have are two confessions, there is no evidence of the corpus delicti as required. This is true under the McLarne decision even though we regard the statement made at the preliminary hearing as an admission. Its character is within the prohibition of the statute. If the rule announced by the majority is true, a defendant who had signed a confession in the presence of the county attorney and then stated to that official orally that he was guilty could be convicted under § 9902. Obviously this is a clear violation of the mandate of that statute. Manifestly a restatement of a proposition cannot alter its fundamental nature.
¶17 While I think that the legislature might well modify the statute, I protest against judicial amendment, especially when it is in clear violation of a statute, even an unwise one. I think that the order should be reversed and a new trial granted.