Cohen v. United States

• Decision Date: 29 June 1923
• Docket Number: 3199.,3198
• Citation: 291 F. 368
• Parties: COHEN v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

291 F. 368

COHEN v. UNITED STATES (two cases).

Nos. 3198, 3199.

United States Court of Appeals, Seventh Circuit.

June 29, 1923

Nelson Trottman, of Milwaukee, Wis., for plaintiff in error.

H. A Sawyer, of Milwaukee, Wis., for the United States.

Before BAKER, EVANS, and PAGE, Circuit Judges.

BAKER Circuit Judge.

On consolidated indictments, Cohen a postal employee, was convicted of having opened letters from which he abstracted checks and then cashed them by means of forged endorsements and appropriated the proceeds to his own use.

Aside from an alleged oral confession the government's evidence was circumstantial. Cohen objected to the introduction of testimony regarding the alleged confession on the ground that it was obtained from him against his will while he was in the custody of officers. He asked that a preliminary investigation be had before the judge, with the jury excluded, in order to determine the question of prima facie admissibility. He was entitled to such an inquiry, but it was refused to him. On such an inquiry, if the testimony shows without substantial conflict that an accused or suspected person in custody has made a confession through any sort of coercion or by reason of any promise of reward or leniency the judge should refuse to permit the confession to be used as evidence and should keep any reference to it from the jury's hearing. If on the other hand the testimony for the government tends to show that the alleged confession was made voluntarily in the legal sense, then no matter how heavily the testimony for the defendant as to the character of the confession may controvert that for the government, the confession is prima facie admissible as evidence; the jury should be recalled; and the judge, in finally submitting the case to the jury, should give the legal tests for the jury to apply to the evidence in deciding whether the confession should be counted or should be rejected in determining the issue of guilt or innocence. Sparf v. United States, 156 U.S. 51, 15 Sup.Ct. 273, 39 L.Ed. 343; Bram v. United States, 168 U.S. 532, 18 Sup.Ct. 183, 42 L.Ed. 568; Murphy v. United States (C.C.A.) 285 F. 801.

This requirement of a preliminary investigation into the character of a challenged confession goes deeper than procedural formality.

A confession, if found to have been voluntary, is evidence of the weightiest sort. It is almost conclusive. So a defendant who has pleaded...