Bonahoon v. State
| Decision Date | 10 December 1931 |
| Docket Number | 26,039 |
| Citation | 178 N.E. 570,203 Ind. 51 |
| Parties | Bonahoon et al. v. State of Indiana. [*] |
| Court | Indiana Supreme Court |
1. ASSAULT AND BATTERY---Evidence Sufficient to Sustain Conviction of Police Officers.---Evidence held sufficient to sustain conviction of police officers for committing assault and battery on prisoner, and justifying prosecution under 2419 Burns 1926 defining the crime of "assault and battery," although it probably would have been sufficient to have sustained a verdict of guilty under 2420 Burns 1926 prescribing punishment for police officers and others attempting to extort confessions by physical violence p. 55.
2. ASSAULT AND BATTERY---Obtaining Confession by Force---Cruel and Brutal Methods should not be Tolerated.---The securing of voluntary confessions from guilty criminals is to be desired and the reasonable examination of prisoners charged with or suspected of crime is and should be allowed in the interest of the public welfare and safety, but such examination should be kept within proper bounds and cruel and brutal methods should never be tolerated. p. 55.
3. CRIMINAL LAW---Confessions---Obtained through Threats, Fear Physical Force or Violence---Not Admissible in Evidence.---Confessions obtained by police officers through threats, fear, physical force or violence are useless because they are not admissible in evidence. p. 55.
4. CRIMINAL LAW---Law and Constitution Protect Persons under Arrest from Ill Treatment.---The law protects persons charged with crime from ill or unjust treatment at all times, and the Constitution provides that "no person arrested or confined in jail shall be treated with unnecessary rigor" (15, Art. 1, Constitution, 67 Burns 1926). p. 56.
5. CRIMINAL LAW---Law Protects Police Officer in Proper Discharge of Duties---Also Protects Individual from Abuse of Police.---While the law protects the police officer in the proper performance of his duties, it must at the same time just as effectively protect the individual from the abuse of the police. p. 56.
6. CRIMINAL LAW---Acts Constituting Assault and Battery and Giving "Third Degree" to Prisoners---State may Elect which Offense to Prosecute.---Where the acts of persons charged with crime constitute assault and battery as well as a violation of the statute making it a criminal offense to give the "third degree" to prisoners (2420, 2421 Burns 1926), the state has the right to elect which offense to prosecute. p. 56.
7. CRIMINAL LAW---"Third Degree" Methods for Obtaining Confession---Statute not Limited to Cases where Prisoner Formally Charged with Crime.---The statute defining the crime of obtaining a confession from "any person under arrest charged with the commission of a crime or the violation of any law," by the infliction of personal violence or by threatening to inflict such violence, etc. (2420, 2421 Burns 1926) is not limited to cases where the prisoner has been formally charged with the commission of a crime by indictment or affidavit. p. 57.
From Allen Circuit Court; Clarence R. McNabb, Judge.
Isay Bonahoon and Frank W. McGary were convicted of assault and battery, and they appealed.
Affirmed.
Edward B. Henslee and Smith & Parrish, for appellants.
James M. Ogden, Attorney-General, and Earl B. Stroup, Deputy Attorney-General, for the State.
Each appellant was prosecuted by an affidavit which charged that he "did . . . in a rude, insolent and angry manner, unlawfully touch, beat and strike the person of one George Dannells" -- a charge of assault and battery in the language of the statute, § 354, ch. 169, Acts 1905, § 2419 Burns 1926. The causes were consolidated for trial by a jury, which returned a verdict finding the defendants "guilty of assault and battery as charged in the affidavit and that they be imprisoned in the county jail for a period of 30 days and that they be fined in the sum of $ 50." Judgment was rendered upon the verdict, from which this appeal was taken.
From the recital of the State's evidence, upon which the verdict was based, as set out in appellants' brief, it appears that George Dannells was arrested by motorcycle police officers at 11 p. m. February 16, 1931 and taken to the Ft. Wayne police station upon suspicion. (Some gasoline had previously been stolen from a garage in a yard where he was found prowling.) The appellants, who were plain-clothes police officers, took Dannells to the detectives' room, about 4 by 5 feet in size, on the third floor of the police station, and gave him what is sometimes called the "third degree." At the time, no warrant had been issued for Dannells' arrest and no charge of crime had formally been placed against him. They questioned him, accused him of stealing gasoline and of lying, called him vile names, tried to make him confess that he had stolen gasoline and threatened him with bodily injury if he did not confess. McGary, with his fists, hit Dannells in both eyes, cut the top of his head, and beat him with a rubber hose on the head and ears until he (McGary) was panting and the sweat ran down on his face. Bonahoon then took the hose and continued to beat Dannells with it. A police officer testified that he overheard the conversation which went on for half an hour in the detectives' room, that both McGary and Bonahoon said "We will beat your head off if you don't tell the truth" and that Dannells said "Please don't hit me any more -- I did not steal gasoline." Four other police officers testified that Dannells had no abrasions or welts on him before going to the detectives' room, but that when he was brought out, about 1 a. m., and locked up in a cell that he had a cut on his ear that was bleeding, a scar on his nose, marks on his head, his right cheek bone swollen, his face full of welts and one eye red and almost closed. The police surgeon who examined him next day told of bruises about the right eye, abrasions on the right ear, the cheek bones swollen, black and blue, red and swollen welts on his left side and black and blue marks on his back.
Officer McGary testifying in his own behalf did not deny hitting Dannells with his fists and kicking him, but claimed that he did it in "self defense" and "for my own protection." Both McGary and Bonahoon, who weighed 180 and 230 pounds respectively, had their hands dressed at a hospital after conducting their investigation of the prisoner. McGary testified "I sprained my thumb hitting him," but Bonahoon testified "I tore my thumb nail off" in getting off of a chair. A state senator, an ex-mayor and some ex-policemen testified that "the reputations of Bonahoon and McGary for peace and quietude are good."
The appellants, at the close of the State's case, and again after both the State and the defense had rested, moved the court to instruct the jury to return a verdict in their favor finding them not guilty. Error assigned upon the action of the court in overruling each of these motions presents the appellants' only contention for reversal of the judgment. This contention is "that they were prosecuted under the wrong section of the statute and for the wrong offense . . .; that the evidence shows . . . they should have been prosecuted under § 2420 Burns 1926 which defines the offense of using force to obtain a confession from a prisoner, instead of § 2419 which defines the offense of assault and battery . . . that, while prior to the creation of the new offense as defined in § 2420 . . ., appellants, under the evidence, may have been guilty of the crime of assault and battery and properly prosecuted under § 2419, since the creation of the new offense, it was the duty of the state to prosecute them under § 2420, for the reason that, by its enactment, a new, specific, separate and distinct offense was created for the punishment of persons or peace officers undertaking the use of force to obtain a confession from a prisoner."
The evidence adduced at the trial was amply sufficient to sustain the verdict on the charge of assault and battery under § 2419 Burns 1926, and it appears to us, although we are not here called upon to decide, that such evidence would have been sufficient to sustain a verdict of guilty on a charge of the crime defined by § 2420 Burns 1926, had the appellants been prosecuted under that section of the statute.
Police officers are constantly confronted with difficult and trying duties in handling prisoners, many of whom are hardened and resourceful, and the courts will go far in the support of police officers who act in good faith in a legitimate effort to protect society. They may exercise reasonable means for the safe keeping of prisoners, to preserve discipline and to secure obedience to reasonable orders. The...
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