While in this case there was no witness to the homicide and the
identification of the body found was not perfect, owing to its
condition caused by its having been partially burned, yet, as the
circumstantial evidence was clearly enough to warrant the jury in
finding that the body was that of the person alleged to have been
murdered and that he had been killed by defendant, the trial court
would not have been justified in withdrawing the case from the
jury, but properly overruled a motion to instruct a verdict of not
guilty for lack of proof of the corpus delicti.
In the absence of positive proof, but where there is
circumstantial evidence of the corpus delicti,
it is not
error to submit to the jury the question of defendant's guilt with
the instruction that the circumstantial evidence
Page 205 U. S. 87
must be such a to satisfy the jury beyond a reasonable doubt
that the corpus delicti
has been established.
The testimony of a marshal as to conversations between him and
the defendant charged with murder which were voluntary, and not
induced by duress, intimidation, or other improper influences, is
Whether in a criminal trial the court interpreter should be
appointed is a matter largely resting in the discretion of the
court, and its refusal so to do is not an error where it does not
appear that the discretion was in any way abused.
The facts are stated in the opinion.
Page 205 U. S. 88
MR. JUSTICE BREWER delivered the opinion of the Court.
On July 17, 1905, Vuko Perovich, now plaintiff in error, was
indicted in the United States District Court of Alaska,
Page 205 U. S. 89
Third Division, for the murder of Jacob Jaconi. The trial, on
August 5, 1905, resulted in a verdict of "guilty of murder in the
first degree, and that he suffer death." Motions for a new trial
and arrest of judgment having been overruled, he was, on September
15, 1905, sentenced to be hanged. To review that judgment, this
writ of error was sued out. The record was filed in this Court on
September 24, 1906, and on application, the case was advanced for
hearing on January 21, 1907. No counsel appeared for plaintiff in
error, and no brief was or has been filed in his behalf. The case
was submitted by the government on its brief. Although unaided by
counsel for plaintiff in error, we have carefully examined the
record and considered the assignments of error.
The testimony in the case was circumstantial. No witness saw the
killing. Indeed, the first and principal question is whether there
was a homicide. Jaconi was a fisherman, living alone in a log cabin
covered by a tent, about midway between Fairbanks and Chena, a
distance of about four miles from each place. On October 28, 1904,
the last time he was seen alive, he was at Fairbanks between one
and two o'clock in the afternoon, and had in his possession several
nuggets, a Yukon gold ring, a gold chain, watch charm, and some
money, part of which he deposited in a bank. In the early morning
of October 29, the dogs of the deceased were heard barking, and two
shots from a gun were heard in the direction of his cabin. On that
day about noon, one who had been the partner of Jaconi arrived at
his camp and found the cabin in which the deceased had lived
partially destroyed by fire, and the fire still burning. In the
rear where the bunk had been, he saw the back part of a head, a leg
bone, and the trunk of a man. The head was sunken on the chest.
While the cabin was not totally destroyed, it was burned more
towards the back where the bunk had been, and the ground in the
vicinity of the bunk was saturated with oil. It appeared that
Jaconi had in his cabin about one and one-half gallons of olive
oil. On that day or the next, several witnesses were at the cabin
Page 205 U. S. 90
the skull and the other parts of the skeleton, still smoking,
and the bones so burned that they crumbled to pieces when touched.
Some two weeks before the fire, the defendant had said to a witness
that he was broke, but knew where he could get some money if he had
a partner to go with him, as there was a man who lived about five
miles from Chena who had $500, a watch and chain, a ring and a gun.
On October 15, he was at the cabin of Jaconi about daylight. At
that time he said to the former partner of Jaconi, when asked what
he wanted, that he was traveling and looking for a job. On October
20, defendant and a witness went to Chena and on their way stopped
at the cabin of Jaconi. After leaving, defendant told witness that
he had been there several times before, and that the deceased had a
roll of money, and that he would lick him with an ax some day and
throw him in the water, or that he would make a fire and burn
everything up. On October 28, the day on which Jaconi was last
seen, the defendant was at Fairbanks, and said he was going to the
cabin of one of his countrymen to see if he could find anything in
it. On October 29, between half past 3 and 4 o'clock in the
afternoon, he arrived at a camp about twenty miles from Chena. He
had a rifle and a canvas bag in his possession, a Yukon ring and a
gold watch and chain. He made different and contradictory
statements about the watch. On November 5, he was arrested, having
in his possession $50 and a gold watch. He said that he traded a
nugget chain with two men for a sack of clothes and the watch.
Later a sack of clothes was found where he had left it. He said
that he and his partner had made the chain, and that he had bought
his partner's interest in it. His partner testified that they owned
the nugget chain, and that it had never been out of his possession
after it was made. Several of these articles and others found in
possession of the defendant were identified as the property of
Jaconi. Other circumstances of a similar nature were also shown in
It is assigned for error that the court overruled a motion
Page 205 U. S. 91
to instruct the jury to bring in a verdict of not guilty for the
reason that the corpus delicti
had not been proved. This
motion was made after the plaintiff had rested, and, upon its being
overruled, the defendant proceeded to offer testimony. The motion
was not thereafter renewed. Without resting upon the proposition
that introducing testimony after such a motion has been overruled
is a waiver of any exception to the action of the court (Union
Pacific Railway v. Daniels, 152 U. S. 684
Runkle v. Burnham, 153 U. S. 216
Hansen v. Boyd, 161 U. S. 397
are of the opinion that neither at that time nor at the close of
all the testimony would the court have been justified in
withdrawing the case from the jury. While it is true there was no
witness to the homicide and the identification of the body found in
the cabin was not perfect, owing to its condition, caused by fire,
yet, taking all the circumstances together, there was clearly
enough to warrant the jury in finding that the partially burned
body was that of Jaconi and that he had been killed by the
defendant. Upon this question, the case of Commonwealth v.
171 Mass. 461, is closely in point and instructive.
While the particular facts are not identical, the character and
scope of the testimony are substantially the same.
Again, it is alleged that there was error in overruling a motion
made by defendant to strike out all the testimony given by a deputy
marshal of conversations between him and the defendant. As these
conversations were not induced by duress, intimidation, or other
improper influences, but were perfectly voluntary, there is no
reason why they should not have been received.
Other matters referred to in the assignment of errors require
but slight notice. One is that the court erred in refusing to
appoint an interpreter when the defendant was testifying. This is a
matter largely resting in the discretion of the trial court, and it
does not appear from the answers made by the witness that there was
any abuse of such discretion.
Error is also alleged in refusing an instruction as to the
Page 205 U. S. 92
evidence necessary to establish the corpus delicti.
is enough, in answer to this objection, to refer to the summary of
the testimony we have already given and to note the fact that the
court instructed that the evidence must be such as to satisfy the
jury beyond a reasonable doubt.
The defense asked one or two instructions, such as this: "The
fact that Jacob Jaconi has not been seen since the twenty-eighth
day of October, 1904, does not create a presumption of his death."
Singlish out a single matter and emphasizing it by special
instruction as often tends to mislead as to guide a jury. Doubtless
the isolated fact that Jaconi had not been seen would not of itself
establish the fact of his death. It is only a circumstance which,
taken in connection with the other facts in the case, tends to
prove the death. It is merely one link in a long chain, and the
court is seldom called upon by special instructions to single out
any single link in a chain and affirm either its strength or
weakness. Grand Trunk Ry. Co. v. Ives, 144 U.
, 144 U. S. 433
Rio Grande Western Ry. Co. v. Leak, 163 U.
, 163 U. S.
Objection is made to the instruction in reference to reasonable
doubt. This instruction is taken from the charge of Chief Justice
Shaw to the jury in Commonwealth v. Webster,
5 Cush. 295,
320, and that case has been cited with approval by this Court.
Miles v. United States, 103 U. S. 304
103 U. S.
These are all the questions which we deem it necessary to
notice, and while we should have been glad to have had the
assistance of counsel for plaintiff in error, yet we are satisfied
from our examination of the record that the defendant was properly
convicted, and the judgment is