¶1(dissenting).
¶2The all-important question and issue in this case is the defendant’s contention that the State failed to prove by sufficient evidence the corpus delicti. If there is merit in that contention, and I am persuaded that there is, the conviction cannot stand.
¶3As a general proposition, while we have been less than consistent with respect to the elements that must be established in order to prove the corpus delicti, I agree with the majority that the almost universally accepted rule is to the effect that it consists of (1) death and (2) the criminal agency of another. We adhered to that rule in the early case of Dalzell v. State, 7 Wyo. 450, 53 P. 297, 298. It must also be proved beyond a reasonable doubt. Bennett v. State, Wyo., 377 P.2d 634, 635. I agree also that such proof may be made by direct or circumstantial evidence or by a combination of the two and in unusual circumstances proof of the corpus delicti is often interwoven and considered with that connecting the accused with the crime. Markoff v. State, 52 Wyo. 457, 75 P.2d 773, 778. That case, however, is not as broad as the rule stated in 23 C.J.S. Criminal Law § 916(4), upon which the majority relies, which to me because of the circumstances here has no application inasmuch as the State’s own evidence which fixed the cause of death as probable asphyxia brought about a separation in its proof. Evidence of death by any other *463cause was foreclosed and as shall be pointed out the pieces of evidence upon which the State relies were of little probative value in establishing that the asphyxia resulted from a “criminal agency." In addition, an examination of the cases shown in the footnotes as supporting the rule almost without exception dealt with cases wherein there were extrajudicial confessions or admissions to corroborate the proof pertaining to criminal agency. Here there was no extrajudicial confession or admission of the guilt of the defendant.
¶4Other than the limitation of the order of proof laid down in Konopisos v. State, 26 Wyo. 350, 185 P. 355, 356, that extrajudicial confessions or admissions “should not be allowed to go to the jury until other evidence sufficient to go to the jury on the question of the corpus delicti has been introduced by the state,” such order of proof is largely discretionary with the trial court. Where as here, however, the State relies entirely upon circumstantial evidence which it contends established the “criminal agency,” such proof must be clear, convincing and competent, sufficient to exclude uncertainties beyond a reasonable doubt. It cannot be established by speculation, suspicion, surmise or guess, State v. Osmus, 73 Wyo. 183, 276 P.2d 469, 484; or even upon probabilities, Smith v. State, 40 Wyo. 128, 274 P. 1074, 1079; State v. Rideout, Wyo., 450 P.2d 452, 454-455.
¶5It is also well recognized that the establishing of the corpus delicti will not be presumed, State v. Doyle, 201 Kan. 469, 441 P.2d 846, 860-861; 23 C.J.S. Criminal Law § 916(2), p. 626; and the presumption is that the death resulted from innocent, noncriminal causes, Reyes v. State, 151 Neb. 636, 38 N.W.2d 539, 544.
¶6With the foregoing concepts in mind, I will comment briefly upon the evidence which the State asserts established the corpus delicti.
¶7Turning first to the probative value of the purported threat of violence to the decedent made by the defendant several hours before the alleged time of death, it is a well recognized rule that such threats, although competent on the issue of malice or intent, are not admissible or competent in making proof of the corpus delicti. Decker v. Commonwealth, 278 Ky. 145, 128 S.W.2d 600, 602; 40 C.J.S. Homicide § 201, p. 1102.
¶8With respect to the evidence relating to the concealment of the body, it is true, of course, many cases are to the effect that this is a strong incriminating circumstance along with other facts in the case. See Annotation 2 A.L.R. 1227 and the later cases as disclosed by the Later Case Service. A review of those cases, however, will disclose that with few exceptions the corpus delicti was established by other evidence and the ultimate issue reduced itself to the identity of the accused as the criminal agency. Notwithstanding the rule in other jurisdictions, we viewed such evidence as a “suspicious circumstance” in the case of State v. Osmus, supra, 276 P.2d at 477-478, and held that it did not prove that the death was caused by criminal agency.
¶9The fact that the defendant failed for several days to notify the police of the disappearance of the decedent, which perhaps may also be regarded as a suspicious circumstance, is of little if any probative value inasmuch as the delay is explained to some extent by the State’s evidence and there was no legal duty imposed upon the defendant to report the matter to the police.
¶10That defendant may have lied to the police with respect to the incident concerning the shovel might well have had a direct bearing upon the defendant’s credibility had the defendant taken the stand. However, it had no probative value on the matter under discussion so far as I can determine and the State’s argument does not inform or enlighten me.
¶11Reverting now to the State’s theory that the probable cause of death was asphyxia, the State in its brief concedes that its medical testimony did not prove “the criminal agency associated with the death,” and consequently I do not dwell upon the testi*464mony of Dr. Sakai except to say that it by no means excluded the admitted fact that asphyxia could result from many causes, natural and unnatural, innocent or criminal, and could result by someone placing a pillow over the nose of decedent, of which there was no proof; or on the other hand by a person rendered unconscious by alcohol or a combination of barbiturates and alcohol who somehow got a pillow under the nose. In this connection the State’s evidence without contradiction shows that decedent was intoxicated on several occasions, had been drinking shortly before the claimed time of death, and also that decedent had barbiturates in her possession.
¶12Another infirmity in the State’s proof of criminal agency is that it builds inference upon inference in order to sustain its claim and this cannot be done. Tate v. People, 125 Colo. 527, 247 P.2d 665, 672; Hartman v. State, 185 Tenn. 350, 206 S.W.2d 380, 385; Foster v. State, 180 Tenn. 164, 172 S.W.2d 1003, 1006. There is no direct evidence that the defendant concealed the death of his wife by placing the body in the lake. The State contends it was proved by the circumstantial evidence tending to show that the rope binding the body was alike in color, composition, and size to rope found in defendant’s possession; that the body was wrapped in a tarpaulin and defendant at one time had a tarpaulin for his trailer which had not been seen by a neighbor that summer; an inner wrapping of a quilted pad which could have come from a warehouse connected by a door to defendant’s barbershop; and that defendant had a boat and was seen on the lake the day the body was discovered. From this the jury would first have to draw an inference that defendant owned or obtained the wrappings found on the body; then an inference based upon that inference that he placed the body in the lake; and then an inference upon those inferences that the death resulted from criminal agency by the placing of a pillow over the nose and mouth of the decedent. Certainly such evidence was wholly insufficient to prove criminal agency and did not meet the presumption that the death resulted from innocent, noncriminal causes.
¶13Cases dealing with death caused by asphyxia are few and far between, but as indicated above such cause of death was before us in the Osmus case, which I have already mentioned, and in the three cases of Coca v. State, Wyo., 423 P.2d 382; Lujan v. State, Wyo., 423 P.2d 388; and Borrego v. State, Wyo., 423 P.2d 393. In those last three cases there was medical testimony that the asphyxia was “due to vomitus in the breathing airway and that vomiting might be caused by extreme emotional disturbance, trauma, disease, or certain other circumstances.” Coca v. State, supra, 423 P.2d at 383. It will be noted that we did not accept such medical testimony standing alone as establishing the cause of death. Nevertheless, in view of the evidence of the violence perpetrated upon the body of the deceased, we held there was sufficient evidence to justify a finding that the vomitus was caused by such violence. Here, of course, just as in the Osmus case, there was no evidence of violence. I realize, of course, that the majority attempts to distinguish the instant case from the Osmus case but to me the effort is not convincing. The critical question there of the failure of the State to prove the criminal agency it undertook to prove is identical to the critical question in the instant case.
¶14From the foregoing I can only conclude that the holding of the majority to the effect that the attempt to conceal the body, together with the testimony that the death was caused by asphyxia, was sufficient to meet the burden of the State to prove criminal agency beyond a reasonable doubt is, in order to meet the exigencies of this case, the adoption of rules which are contrary to the rules we have heretofore observed and prescribed. I say this for the reason that in support of its determination it cites People v. Miller, 71 Cal.2d 459, 78 Cal.Rptr. 449, 455 P.2d 377, 387. California appears to be at least one state that has departed from the requirement that the corpus delicti be established “beyond a rea*465sonable doubt.” In that state all that is required is for the State to make out a prima facie case “that the deceased met his death by means of an unlawful act of another," People v. Ives, 17 Cal.2d 459, 110 P.2d 408, 411; or as stated in People v. Small, 7 Cal.App.3d 347, 86 Cal.Rptr. 478, 482, to establish a “reasonable probability that the criminal act of another was the cause of death.”
¶15Also bearing upon this matter is a recital by the majority from an order entered in an original proceeding here wherein the defendant sought relief from a determination by the justice of the peace that there was probable cause for requiring defendant to answer and defend the criminal charge in the district court. I fail to see the significance of that. Under Rule 7(b), W.R. Cr.P., the commissioner may require an accused to answer and defend an accusation in the district court if it appears “that there is probable cause to believe that an offense has been committed and that the defendant has committed it.” To me there is a substantial difference between the State’s burden to produce evidence sufficient to support a determination of “probable cause to believe” and the burden cast upon the State in the trial to prove beyond a reasonable doubt not only the death by criminal agency but the identity of the accused as the criminal agent. In any event, the order also recites that the matter was not considered “in depth” and the paramount reason for summarily denying the petition was the impending trial within a very few days.
¶16Additionally, of course, the function of the trial court in assessing the sufficiency and probative value of the evidence at the trial is entirely different from the function of the commissioner at the preliminary hearing. At the trial stage the State must meet its burden of proving the corpus de-licti beyond a reasonable doubt and if the evidence offered in proof thereof is not sufficient affirmatively to establish by clear and convincing evidence that death resulted from the criminal agency of another it is the trial court’s duty to so hold and to dismiss the information. State v. Doyle, 201 Kan. 469, 441 P.2d 846, 858; Azbill v. State, 84 Nev. 345, 440 P.2d 1014, 1018.
¶17It may be that this case demonstrates a need for reexamination of previous holdings of this court on the question of the proof necessary to establish the corpus de-licti and the adoption of a broader concept than has heretofore been taken. To do so other than prospectively, however, it seems to me results in a manifest injustice for the reason that the trial strategy of counsel for defendant in not putting the defendant on the stand and in not presenting evidence was predicated upon his insistence that the State had failed to meet its burden of establishing the corpus delicti under legal principals to which we have adhered.
¶18The error with respect to proof of the corpus delicti was compounded by the refusal of the trial court to instruct on corpus delicti. I disagree with the majority’s view that it was unnecessary to give such an instruction. As I previously stated, the State’s proof of the corpus delicti was the all-important question and issue in this proceeding. The trial court gave as its reason for denying the instruction requested by defendant that it would only confuse the jury to undertake to instruct on the “technicalities associated with corpus delic-ti.” While we have not heretofore passed upon the precise question, the prevailing rule is to the contrary.
¶194 Warren on Homicide, § 322, pp. 23-24 (Perm.Ed.), says:
“The court should charge the jury that proof of the corpus delicti is essential to the conviction of defendant, and that this must be proved beyond any reasonable doubt, and that this is the rule whether the evidence is direct and positive or merely circumstantial. … ”
¶20See also 41 C.J.S. Homicide § 355, p. 122. In the early case of Territory v. Monroe, 2 Ariz. 1, 6 P. 478, 479, it was said:
“ … It would be folly to argue that a conviction for murder could be sustained when the corpus delicti■ is not *466proven. It was a question which it was the duty of the jury to pass upon, and if not proven, it was their duty to acquit, and it was the duty of the court to so charge them, and the refusal of the request to make such charge was manifest error.”
¶21Pumpkin v. State, Okl.Cr., 295 P.2d 819, 825, flatly says, “The court should have clearly defined the meaning of corpus de-licti.” Where, as here, the trial court and this court were fully aware of the defendant’s contentions throughout the proceedings and the State’s proof of the corpus delicti was indeed questionable, the least that should have been done if the case was to go to the jury was to give a careful and specific instruction with respect to the corpus delicti. The general instructions did not purport to cover this critical issue. In this connection I might say it seems quite inconsistent to me for the majority to accept the proposition that to use the term “corpus delicti” in an instruction would only confuse the jury and then condone the giving of at least three separate instructions on the meaning of reasonable doubt, which we have unequivocally denounced in the four cases cited in footnote 13 of the majority opinion as tending to confuse the jury for the reason that the term carries its own definition. Under our previous pronouncement it was prejudicial error for the trial court on its own volition to give all of those instructions.
¶22Perhaps I need not extend this opinion further but I do not concur in the intimation that Dr. Sakai was free to use the FBI report as a basis for his opinion without its being in evidence, Lujan v. State, supra, 423 P.2d at 392, and which was not prepared under his supervision and direction. Neither do I concur in the discussion concerning the admissibility of a statement assertedly made by decedent to Mrs. Cortez the day before Mrs. Alcala’s disappearance. It is contrary to what was said concerning such statements in State v. Kump, 76 Wyo. 273, 301 P.2d 808, and in fact was double hearsay, People v. Lew, 68 Cal.2d 774, 69 Cal.Rptr. 102, 441 P.2d 942, 944.
¶23With respect to Instruction 17, I would agree that had the second full paragraph thereof not been given it would appear not to have been harmful to the defendant. However, the State fails to point out the source thereof and I take it cannot do so. It seems clearly erroneous to me. It may be possible, of course, as the majority says that it could benefit an accused in an argument to the jury but defendant’s criticism that “The Court might just as well have added a fifth example: ‘If you find a woman’s body wrapped in a tarpaulin, weighted by a cinder block and floating in a lake, you know she was murdered by her husband though you did not see the blow struck or hear her scream of pain and horror’ ” would seem to be just as reasonable and more probable. There is at least a doubt as to whether or not it was prejudicial and that doubt should be resolved in favor of the defendant.
¶24Also, in connection with circumstantial evidence the trial court by Instruction No. 18, after stating that such evidence should “exclude every reasonable hypothesis consistent with innocence,” went on to say that it was unnecessary “that it should dissipate mere conjectures and speculative doubts, for metaphysical and demonstrative certainty is not essential to proof by circumstances.” From what followed, the thrust of that language might not have been harmful but under the circumstances of the case it seems to me it was prejudi-cially erroneous for the court not to have given at defendant’s request the instruction set forth in Osmus, 276 P.2d at 483-484, which was said to be “highly and peculiarly appropriate in a case such as that at bar.” The instruction was in keeping with and particularly pertinent to defendant’s defense that the State had failed to prove the corpus delicti.
¶25With respect to Instructions 23 and 25, I would agree, if it were not for the errors discussed above, that the giving of these two instructions was not so prejudicial as to necessitate reversal. Although it is true that these instructions eliminated some of the language of the Allen Instruction, *467which was before us in Elmer v. State, Wyo., 463 P.2d 14, and which was given as a supplemental instruction, it can hardly be questioned that the tenor and purpose of Nos. 23 and 25 was to get before the jury other ingredients of the Allen Instruction which mounting authorities condemn as being coercive and erroneous. It seems to me that the caveat we gave in Elmer against future use of such instructions, whether original or supplemental, was made clear but apparently it has not been so understood. I would now make it clear beyond question that henceforth instructions such as Nos. 23 and 25, even though containing some language not subject to criticism, should not be given and will not be condoned.
¶26For the foregoing reasons I would hold that the trial court erred in denying defendant’s motion for judgment of acquittal and reverse the judgment.
¶27ON PETITION FOR REHEARING
¶28Petition for rehearing having been filed by appellant, and petition for stay of execution having also been filed by appellant, with a request that, in the event a rehearing is denied, then and in that event a stay of execution be granted for sufficient time for appellant to petition the United States Supreme Court, in forma pauperis, to grant a writ of certiorari; such petitions having been duly considered; and it having been determined that the petition for rehearing is without merit in that the points raised were carefully and fully considered by the court in the disposition heretofore made; but that appellant’s request for stay of execution should be granted:
¶29It is ordered that the petition for rehearing be and the same is hereby denied.
It is further ordered, however, that appellant, Jess Alcala, be and he is hereby granted a stay of execution for a period of six months from the date hereof, or until the United States Supreme Court has acted unfavorably in regard to appellant’s petition for writ of certiorari, in the event of such action before six months from the date hereof, conditioned upon appellant’s appearance bond in the amount of $15,000 being kept in full force and effect throughout such stay of execution.
¶30GRAY, J., dissented in the original opinion and would grant the petition for rehearing.