¶1(dissenting) — I am unable to concur in the majority opinion and respectfully dissent therefrom.
¶2There are no material conflicts in the facts as they appear from the record. The matter was submitted to the jury over the objection of appellant, who moved for a directed verdict. A verdict of guilty followed. This verdict the court refused to set aside.
¶3It seems to me that there are but two questions involved: First: Was there sufficient evidence to warrant the trial court in submitting the issue of the guilt of the defendant to the jury ? If that be answered in the negative that ends the case. Second: If the court properly submitted the case to the jury, was there prejudicial error committed by misconduct of the prosecuting attorney? If there was such error then the case should be reversed. I am of the opinion that the trial court erred in both instances.
¶4As I read the record there was an utter and absolute failure to establish the corpus delicti — the illegal transportation of intoxicating liquor; there was no evidence of that fact aside from the extrajudicial admissions of the appellant; there was no confession made by the appellant as required by section 782.7, Code of 1946. This statutory provision is set out in the majority opinion.
¶5*1386Tbe majority opinion stresses tbe importance of tbe admissions of tbe appellant as set forth in a paper prepared by the officers, reciting statements made by him in response to questioning sometime after tbe alleged crime. This so-called statement, appellant refused to sign. To call this paper a confession is to pervert tbe language of tbe statute. Before such statement could be used tbe corpus delicti must be shown. There are three cases cited in tbe majority opinion wherein tbe statement (Exhibit A) is designated a confession. In my judgment none of these cases is applicable to tbe present record. In State v. Webb, 239 Iowa 693, 31 N.W.2d 337, tbe corpus delicti was abundantly proved — ■ tbe burning of a building. There was a signed statement of Webb acknowledging the criminal act. In State v. Hofer, 238 Iowa 820, 28 N.W.2d 475, the corpus delicti — murder—was fully shown and signed admissions were given by Hofer. One of tbe points at issue in tbe case was whether the statements were voluntarily made. In State v. Davis, 212 Iowa 131, 235 N.W. 759— breaking and entering — tbe corpus delicti was shown. Admissions were made by defendant to various officers. In tbe opinionJustice Evans called attention to tbe difference between a confession and an admission. In each of the three cases above referred to there was no question as to tbe corpus delicti. In tbe instant case there is little, if anything, aside from Saltzman’s statements, to show tbe corpus delicti, that is- — illegal transportation of intoxicating liquor.
¶6I call attention to tbe record to show bow flimsy is tbe evidence upon which tbe majority opinion rests to show tbe corpus delicti independent of what appellant stated.
¶7Appellant drove up to1 tbe filling station, jumped out of his car and rushed to telephone tbe police. While he was doing so two strangers took his car and pushed it out of sight. None of those present saw any intoxicating liquor, bottles, jugs, or containers about the ear. There was some slight evidence that the rear of the ear seemed heavily loaded and that through the slightly raised lid of its rear there appeared to be some boxes. Take out of the case what appellant said, either at the time or later when he was being detained at the police station, and what is left of the record to show the corpus delicti? To bolster up his statements by appealing to the rule of res gestae is beside *1387the point and proves nothing. No one, aside from appellant, knew the contents of the car, and to rest a conviction on the guess, hazard and speculation of casual and indifferent onlookers is to run in the face of our decisions that the corpus delicti must be shown beyond reasonable doubt. State v. Keeler, 28 Iowa 551.
¶8I repeat — leave out of the case what the defendant said as to his cargo — what have you? It is idle to argue that his extrajudicial statements were sufficient to sustain a verdict of guilty.
¶9Let us assume a state of facts. A stranger drives his car up to a filling station and jumps out, orders the attendant to' hurry up and fill the gas tank — he is excited. In a rather incoherent manner he tells the attendant that he has shot and killed a hitchhiker who tried to rob him; the attendant observed an object in the rear seat covered with a lap robe; the car serviced, the stranger drove away at a rapid rate; the attendant called the officers and they pursued. Several hours later they located the driver in his car and told him what they had learned, arrested him, and demanded an explanation. He said, “I picked up the fellow, he tried to rob me; I had a gun and shot and killed him.” He was questioned by the officers and gave a detailed description of the hitchhiker. He stated that he made away with the body but refused to tell how or where. Assume that he was charged with murder; the body was never found, would this or any other court declare that the corpus delicti had been sufficiently shown ? What more is there in the record in the instant case?
¶10Following, I call attention to various holdings of this court dealing with the establishment of the corpus delicti; also-, relating to admissions and confessions. In many of the cases cited in the majority opinion the corpus delicti was shown and the issue turned upon the admissibility and applicability of the confessions urged — whether voluntary or otherwise.
¶11The term “corpus delicti” has been variously defined. We said in State v. Millmeier, 102 Iowa 692, 698, 72 N.W. 275, 277, that primarily it means the “body of the offense.” The opinion goes on to state that in the opinion of the court the term means, when applied to any particular offense, that the crime has actually been committed by someone; that it is made up of two *1388elements: first, that a certain result has been produced; second, that someone is criminally responsible for the result. The opinion further states that “direct evidence to establish either of these elements is not required, but, where circumstantial evidence is relied upon, it must be of the most cogent and irresistible kind. (Italics supplied.) Citing State v. Keeler, supra. In that case this court held that in a criminal prosecution the corpus delicti must be established by clear and distinct proof and beyond reasonable doubt.
¶12In the case of State v. Cristani, 192 Iowa 615, 616, 185 N.W. 111, 112, Justice Weaver, speaking of the crime charged — arson —said:
¶13“It is an elementary proposition of criminal law that, to be entitled to a conviction, the State must first establish the corpus delicti — the fact that a crime such as alleged has been committed by someone. This [fact] being established, the guilty connection of the accused with such offense must also be established, both beyond a reasonable doubt.” (Citing State v. Millmeier, supra.)
¶14“Corpus delicti”, a proof of which is essential to sustain a conviction, consists of a criminal act, and to sustain a conviction there must be proof of the defendant’s guilty agency to the production of such act. 1 Wharton, Criminal Evidence, section 324. The term has been variously defined: It is the body of crime or essence of crime. People v. Strook, 347 Ill. 460, 179 N.E. 821. It means the fact of crime or the body of the crime. Morris v. State, 109 Neb. 412, 191 N.W. 717. It is the element of the crime. People v. Fallon, 149 Cal. 287, 86 P. 689. It is the body of the crime. State v. Brassfield, 40 Idaho 203, 232 P. 1. It is the existence of the criminal act. State v. Nordall, 38 Mont. 327, 99 P. 960; Wilshusen v. State, 149 Neb. 594, 31 N.W.2d 544; Andersen v. State, 141 Neb. 306, 3 N.W.2d 447; People v. Beltowski, 71 Cal. App.2d 18, 162 P.2d 59; Schuble v. State, 226 Ind. 299, 79 N.E.2d 647; Warmke v. Commonwealth, 297 Ky. 649, 180 S.W.2d 872; State v. Teeter, Nev., 200 P.2d 657; State v. Whisler, 231 Iowa 1216, 3 N.W.2d 525; Osborn v. State, 86 Okla. Crim. 259, 194 P.2d 176; Evans v. State, 224 Ind. 428, 68 N.E.2d 546; Hawkins v. State, 219 Ind. 116, 37 N.E.2d 79; Pines v. United States, 8 Cir., Iowa, 123 F.2d 825.
¶15*1389In the ease of State v. Whisler, supra, an arson ease, the court dealt with the question as to the showing as to the corpus delicti. The opinion discusses a number of cases from this court dealing with such question. State v. Millmeier and State v. Cristani, both supra. In the Whisler case (page 1220 of 231 Iowa) this court quoted from the Millmeier case, part being as follows: “In our opinion, the term means, when applied to any particular offense, that the particular crime charged has actually been committed by someone.”
¶16In the case of Andersen v. State, supra, at page 309 of 141 Neb., page 448 of 3 N.W.2d, in speaking of the corpus delicti and the evidence required to convict, the court said: “One may not be convicted of a felony upon his unsupported extrajudicial confession that a crime has been committed, but such confession may be sufficient to prove the defendant’s connection with the criminal act.”
¶17In the case of State v. Abrams, 131 Iowa 479, 484, 108 N.W. 1041 (carrying concealed weapons),"there was the question as to whether certain admissions of the defendant amounted to a confession. On that subject the court (Ladd, J.) announced the rule to be that to constitute a confession the admissions or declarations must amount to an acknowledgment of the guilt of the offense charged, citing State v. Novak, 109 Iowa 717, 79 N.W. 465; State v. Glynden, 51 Iowa 463, 1 N.W. 750; State v. Knowles, 48 Iowa 598; State v. Jones, 33 Iowa 9.
¶18In the case of Gregg v. United States, 8 Cir., Mo., 113 F.2d 687, 690 (Thomas, Circuit Judge C. C. A.), the defendant was charged and convicted of the crime of illegal transportation of liquor. A large cargo of liquor was found in an automobile then in the possession of the accused. When found, accused readily admitted that he was transporting the liquor from Illinois to Kansas. He signed a written confession as to where he got the liquor, and his destination. He was tried and convicted and on appeal urged there had been a failure to establish the corpus delicti de hors his confession. This claim was denied by the circuit court. However, that court in so ruling said: “It is the law that unless corroborated by independent evidence of the corpus delicti, the extrajudicial confessions or declarations *1390of a defendant charged with crime are not sufficient to authorize a conviction.” (Citing Martin v. United States, 8 Cir., Neb., 264 F. 950, and Naftzger v. United States, 8 Cir., Kan., 200 F. 494.) The. court went on to state that the evidence introduced by the Government corroborated Gregg’s confession in every detail.
¶19The distinction between confessions and admissions was dealt with in the case of Gulotta v. United States, 8 Cir., Mo., 113 F.2d 683 (Thomas, Circuit Judge C. C. A.), where Gulotta was charged and convicted of having falsely represented that he was a citizen of the United States. His conviction was set aside. Then the court called attention to the distinction between confessions and admissions. Therein the court stated that a confession is a declaration made by the accused admitting his participation in the crime with which he was charged and a direct acknowledgment of his guilt; that an admission is a statement, direct or implied, of facts tending to establish guilt; that such admission was not an acknowledgment of guilt but of facts and circumstances, which if taken in connection with proof of other facts may permit an inference of guilt. In support of the rule above-announced the court cited many authorities, among which was that of State v. Cook, 188 Iowa 655, 176 N.W. 674. See also Pines v. United States, 8 Cir., Iowa, 123 F.2d 825, and 127 A. L. R. 1120 (note 1130).
¶20Also on the question of confession and the corpus delicti see State v. Stewart, 231 Iowa 585, 1 N.W.2d 626, and State v. Plude, 230 Iowa 1, 296 N.W. 732. Both of these eases relate to the question of the confession and do not overrule, reverse or criticize the rules above laid down.
¶21The majority opinion holds that Saltzman’s statement to the officers was a confession. I call attention to some of the authorities dealing with confessions in criminal cases. There is a marked difference in the two terms. See State v. Davis, supra.
¶22In State v. Abrams, 131 Iowa 479, 482, 108 N.W. 1041, 1042, this court (Ladd, J.) referred to the statute, section 5491, Code of 1897 (now 782.7, Code of 1950), which provided: “The confession of the defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that *1391the offense was committed.” The charge against Abrams was that of carrying a concealed weapon. The defendant admitted that he always carried a revolver and that he had a right to do so.
¶23The court goes on to say: “Confessions are either judicial or extrajudicial. Judicial confessions are those made in conformity to law before a committing magistrate or in court in the course of legal proceedings. Extrajudicial confessions are those which are made by a party elsewhere than before a magistrate or in court. These, by the great weight of authority, independent of statute, must be corroborated by proof of the corpus delicti.” The court added that as there was no confession by the defendant and no other evidence of the corpus delicti 1he defendant should have been acquitted.
¶24The question was dealt with by this court in State v. Cook, supra (a case of attempted breaking and entering). The evidence showed that someone attempted to open a screen door, but a woman inside screamed and the intruder fled. Cook was apprehended and w'hen accused admitted that he went to the house and was using a flashlight to find the screen door hook when he was scared away. He told of going to the house and pointed it out to the officers. He admitted that he had tried to enter the house and talked to that effect to the sheriff and another person. The trial court overruled a motion for a directed verdict made by The defendant. This court held the ruling as error. The State claimed that the statement of defendant was a “confession”, sufficient to have sustained a verdict of guilty. This court in answering that contention said at page 660 of 188 Iowa: “This position is untenable, for two sufficient reasons: First, there is no evidence of any ‘confession’, in the legal meaning of the word; and, second, if the statements attributed to the defendant be treated as a confession, it is still insufficient to sustain a conviction, under our statute.” (Citing Code section 5491, Code of 1897, now 782.7, Code of 1950.) The court went on to state that a confession is an admission or acknowledgment of guilt of the very offense charged. The case further holds that an admission of the truth of the facts in themselves is not sufficient to constitute a confession although it might be admissible *1392as evidence to support the charge. The court said (page 661) : “The defendant’s admission, as we have seen, consists simply in pointing out the house, saying, in substance: ‘That is the house. I tried to get in, but was frightened away by the woman’s scream.’ ” The court called attention to its finding in the case of State v. Knowles, 48 Iowa 598. The defendant was there charged with the crime of forgery. The State offered in evidence statements or admissions that he wrote the alleged false signature. The trial court treated such statement as a confession. This court ruled this was an error. In doing so it stated that in a confession it is implied that the matter confessed was a crime. The court in the Cook case further stated that even if it could be said that a confession was proved, still it would not sustain a conviction, under the statute, and further stated that in order to sustain a conviction there must appear in the record some testimony wholly independent of the statements of the defendant upon which the jury could properly find that at the time and place mentioned in the indictment some person attempted to break and enter the residence with the intent to commit larceny. In 20 Am. Jur., Evidence, section 484, page 423, it states the rule as well-established that before a confession can be admitted in evidence the corpus delicti of the crime must be established by independent proof and that a failure to do so will exclude the confession from evidence.
¶25The majority opinion treats the statement made by Saltz-man to the officers as a confession. We call attention to the language of this court in the case of State v. Cook, supra. There Chief Justice Weaver called attention to the requirements of the statute (now section 782.7, Code of 1950) and stated that a confession is an. admission or acknowledgment of the crime charged; but an admission of the truth of facts not in themselves sufficient to constitute the alleged offense is not a confession of guilt.
¶26In the ease of State v. Thomsen, 204 Iowa 1160, 216 N.W. 616 (a charge of selling liquor), the prosecuting witness testified that defendant told her that he had sold the liquor. The State relied upon this as a confession to sustain a conviction. In its opinion, this court (by Justice Albert) stated that “for the *1393purposes of ‘this’ case, we accept it as a confession.” Immediately following, tbe court quoted the statute, section 13903, Code of 1924 (now 782.7) and then stated:
¶27“To put this in another way, the corpus delicti of the crime must be proved; and, regardless of what the confession may be, if the corpus delicti is not proved, the conviction cannot stand. Such has ever been the rule of. this court, since the case of State v. Turner, 19 Iowa 144, and has been consistently applied. See State v. Lewis, 45 Iowa 20; State v. Feltes, 51 Iowa 495; State v. Dubois, 54 Iowa 363; State v. Westcott, 130 Iowa 1; State v. Abrams, 131 Iowa 479.
¶28“As applied to this case, there must be evidence to show that this defendant was conducting a nuisance at the time and place in question, and this evidence must come from sources other than, the confession made outside of open court. This does not mean that the person to whom the confession was made cannot also testify to the corpus delicti, but means that, regardless of the source from which it comes, and regardless of the contents of the confession, if there is not some other testimony, aside from the confession itself made outside of open court, a conviction cannot stand.”
¶29The second error urged was that of misconduct of the assistant county attorney in closing argument. Therein he stated:
¶30“Mr. Howard [counsel for appellant] has the audacity to stand here and ask you to free this gangster, this racketeer.” Objection was promptly and properly made by appellant’s counsel. The court inquired of the assistant county attorney: “Is that what you said?” The answer was “Yes sir.” The court: “Well there isn’t any evidence of course to that effect.” Mr. Wheeler: “I stand corrected, your honor.”
¶31Here we have a statement clearly outside the record, literally reeking and saturated with prejudice. We have the court stating that there was no such evidence in the record and the assistant county attorney blandly admitting such fact. The statement was not stricken from the record, the jury was not *1394admonished to disregard it and no instruction dealt with it. The effect of such a statement could not be eradicated. To say that what the court stated was a reprimand or an admonition is absurd. The record goes to show how far the mistaken zeal of prosecutors will take them in order to convict- — in other words, to be able to put another notch on their pistol. To permit such a situation to exist in the trial of a criminal case violates the. rights of the accused at the very fundamentals. It makes a farce out of a proceeding where the liberty of one accused is at stake.
¶32The practice of prosecutors to go- outside the record has been frequently condemned by this court in numerous cases and convictions have been frequently reversed. See State v. Williams, 122 Iowa 115, 97 N.W. 992; State v. Hector, 158 Iowa 664, 138 N.W. 930; State v. Henderson, 212 Iowa 144, 232 N.W. 172;
¶33As to.the duties of the prosecuting attorney we cite the statement of the late Justice Stevens in State v. Weaver, 182 Iowa 921, 927, 166 N.W. 379, 381, wherein it was said: “The duty of the prosecuting attorney is not alone to secure a conviction of the guilty, whenever possible, but also to safeguard the rights of the accused, by closely observing the rules of evidence and prescribed procedure.” On the same subject see State v. Giudice, 170 Iowa 731, 153 N.W. 336, Ann. Cas. 1917C 1160, and State v. Peirce, 178 Iowa 417, 159 N.W. 1050. In the above eases there was a reversal, this court holding that the act of the prosecuting attorney in argument stating matters not in evidence was highly prejudicial and was a violation of the rights of those accused to a fair trial. To characterize the appellant as a gangster and a racketeer was virtually to accuse him of being a criminal. Both of these terms are current in the underworld and to the lay mind one who takes part therein is a criminal of the first order.
¶34• For a prosecutor to go so -fa'r outside the record simply emphasizes the fact that he was trying to secure a conviction on what is sometimes called “general principles”, realizing that his evidence to sustain a conviction was so flimsy and wanting that an appeal to prejudice would fill in the gap.
¶35*1395It seems to me that we should not disregard precedent except for the most compelling reasons. Certainly expediency and the desire to arrive at a certain result should never justify it. The bench and bar have long relied upon precedents to guide them. I deem this to be necessary to the stability of our legal principles.
¶36It is possible that the defendant was transporting something in his automobile which the law prohibited. Possibly he was guilty of the charge. But we are to bear in mind that the law was not made for individuals. The individual has certain rights guaranteed by our laws. He is presumed innocent. He is entitled to his plea. The State must show his guilt beyond a reasonable doubt. It is not a judicial function to do otherwise than to follow the law and to require that before a man is deprived of his liberty the .law be followed. The law to be followed is found in the statutes as construed and interpreted by the prior rulings of the court.
¶37In this connection I desire to call attention to the language of Chief Justice Weaver in State v. Cook, supra, at page 663 of 188 Iowa, page 677 of 176 N.W., wherein a conviction was set aside on a claim that the defendant had confessed:
¶38“It would be a dangerous precedent to permit this conviction to stand. It may be, and perhaps is, true that the accused is an undesirable citizen, of whose presence the community would be glad to be relieved; but every accused person, without respect to his general merits as a citizen, has the right to insist that no judgment shall be entered, depriving him of life or liberty, except by due process of law, and upon competent and sufficient evidence of his guilt of the very offense with which he stands charged.”
¶39This court has so frequently held that errors in criminal cases are presumed to be prejudicial that citation of authorities becomes unnecessary.
¶40I would reverse.