¶1 (concurring). — I fully concur in the result reached in the opinion of Walker, P. J., and in all of the opinion, except the following: “Nor was there sufficient proof of the corpus delicti. To establish this essential to a conviction both the criminal act and the agency of the defendant in its commission must be shown.” I agree that the criminal agency of the defendant was not gho-^jj foy substantial evidence, and therefore that his conviction cannot be permitted to stand. However, I do not agree that the corpus delicti was not sufficiently established. That the dead body was that of Mrs. Joy is not questioned. That she came to her death by the criminal act of some one other than herself is clear beyond the slightest doubt. The establishment of these two facts constitutes full proof of the corpus delicti.
¶2*20 From time to time loose expressions have appeared in our decisions to the effect that proof of the corpus delicti in homicide cases requires proof that the death of the person alleged to have been killed was caused by the criminal act of the person charged with and on trial for the particular homicide. To such an extent have expressions of this kind appeared in our decisions that 30 Corpus Juris, 285, Section 529 (erroneously, I think) cites the Missouri rule as an exception to the general rule that corpus delicti “in criminal homicide involves two elements: (1) The fact of the death; (2) the existence of the criminal agency of another as the cause of death.” The text then cites State v. Miller, 204 S. W. 6; State v. Bass, 251 Mo. 107; State v. Shackelford, 148 Mo. 493, and State v. Dickson, 78 Mo. 438, as supporting such supposed exception to the general rule. Other cases not cited by Corpus Juris can be found where the term “corpus delicti” has been said to include the criminal agency of the defendant on trial. Corpus Juris calls attention.to State v. Henderson, infra, as an exception to the Missouri rule.
¶3 The criminal agency of the person on trial for homicide is not a necessary element of the proof of the corpus delicti at all. Kelley on Criminal Law and Practice (3 Ed.) page 417, sec. 473, defines it thus: “In criminal homicide, the corpus delicti consists of the death of a human being, and criminal agency of another as the means thereof.” The same authority at page 233, section 281, says: “In homicide there must be satisfactory proof of the corpus delicti; which consists: first, of the death of a human being; secondly, criminal agency in causing it.”
¶4 The general rule is that an extrajudicial confession of guilt of homicide will not justify a conviction in the absence of proof of the corpus delicti. [Kelley’s Criminal Law and Practice, p. 233, sec. 281.] Yet, such extrajudicial confession, without other proof of the criminal agency of the accused, is sufficient to sustain conviction where the death of the person the accused has admitted having killed is otherwise established and it appears that such death was caused by the criminal act of some one. Suppose an example. A is found with a dagger driven into his back between his shoulder blades and it appears that death was the result of such stabbing. The corpus delicti is fully shown; that is, death is shown to have occurred and such death was apparently not self-inflicted, nor the résult of accident. The agency of B on trial for the homicide is another matter altogether, and must be proven in addition to such proof of the corpus delicti. But proof of B’s extrajudicial confession of his criminal agency in such death would sufficiently support his conviction.
¶5 Inclusion of the criminal agency of the person on trial as an element in the definition of corpus delicti has doubtless crept into our decisions in those cases where it happened to be necessary to show *21 the agency of the accused in order to establish the very fact of death by the criminal agency of some one other than the deceased. For example, A is found dead with a bullet hole in his forehead. There is evidence of powder burns about the fatal wound. A discharged pistol is found near the body. It might be either a case of accident, suicide or homicide. The facts tending to prove that B killed A necessarily have to be shown in order to prove that death was caused by the criminal act of some person other than the deceased. Yet the proof of the criminal agency of B in A’s death is not actually any part of the proof of the corpus delicti, except that the corpus delicti in the particular case cannot be shown save by the same evidence which tends to prove B’s criminal agency. The fact that the criminal agency of some one can only be shown under the circumstances of that kind of a case by showing the guilty agency of the person on trial does not change the definition of corpics delicti, but doubtless has introduced confusion in defining the term.
¶6 In numerous decisions this division and the court en banc have correctly defined corpus delicti. For this reason I think Corpus Juris has not correctly stated the Missouri rule. I will refer to three or four cases.
¶7 Judge White, when a commissioner of this court, very clearly and correctly defined the term in State v. Schyhart, 199 S. W. 20b, l. c. 211, and cited numerous decisions of this court as well as law-writers in support of such definition. The Schyhart case was not a homicide case. However, corpus delicti means the same thing, that is the body of the crime, in all criminal prosecutions. (See definition of corpus delicti in Webster’s New International Dictionary.) Judge White said: “For instance, in a case of homicide the corptis delicti consists of two elements: First, that a death has been produced: and. second, that the criminal agency of some one was present in its production. The agency of the accused is an element in addition to the corpus delicti, which must be proved in order to convict. ’ ’
¶8 In State v. Crabtree, 170 Mo. 642, l. c. 650, Gantt, J., said: “So that while the evidence of the corpus delicti was most convincing in this case, in that the dead body was found, and conclusively identified, and the further fact that her death was not the result of accident or suicide, but was caused by external violence by some criminal agent by which her neck was dislocated, still before the conviction of this defendant can stand, his guilty agency in encompassing the death of Alice Stallions must have been established,” etc. The Crab-tree case is particularly authoritative because it was there held that the evidence was not sufficient to sustain the conviction of Crabtree, that is, not sufficient to establish his guilty agency, although “the evidence of the corpus delicti was most convincing.”
¶9*22 In State v. Henderson, 186 Mo. 473, l. c. 483, Judge Gantt again said: "The corpus delicti in murder consists of two elements, to-wit, the death of the person alleged to have been murdered, and the criminal agency of some one causing said death.” In State v. Barrington, 198 Mo. 23, at page 113, Judge Fox, speaking for the court en banc, quoted approvingly from State v. Henderson, supra, the language I have quoted above.
¶10 It might be deemed unnecessary again to discuss the meaning of the term “corpus delicti” in a case where the members of the court are so thoroughly in accord with the result reached in the main opinion. My only excuse for doing so is the presence in that opinion of the statement that the corpus delicti was not proven and the necessity that this court should clearly state its definition of corpus delicti in harmony with the great weight of authority in this country. The confusion arising from some of our prior decisions should not longer be allowed to exist.