Eiffe v. State
| Decision Date | 11 March 1948 |
| Docket Number | 28218. |
| Parties | EIFFE v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Criminal Court, Marion County; William D. Bain judge.
Owen S. Boling, of Indianapolis, for appellant.
Cleon H. Foust, Atty. Gen., and Frank E. Coughlin, first Deputy Atty. Gen., for appellee.
Appellant was charged by indictment with murder in the first degree in the Criminal Court of Marion County. To this charge he entered a plea of not guilty, and a special written plea of temporary insanity to which the state replied by general denial.
The cause was tried by jury resulting in a verdict of guilty of murder in the second degree, upon which a judgment and sentence of life imprisonment were rendered.
The assignment of error questions only the overruling of appellant's motion for new trail.
The motion for new trial contains nine specifications. Nos. 1 and 2, assert error in admitting state's exhibits 1 to 20, both inclusive, over defendant's objections. No. 3, asserts error in overruling defendant's objection to a question propounded by the court to the witness, Dr. Charles Hepburn, as follows 'And now, doctor, please tell the jury what was done and said in connection with your examination and conversations with Mr. Eiffe.' No. 4, alleges error in admitting in evidence over defendant's objection, defendant's conversation with witnesses, Dr. Hepburn and Dr. Keene when they were examining him under the court's orders. No. 5 asserts error in overruling defendant's motion for a directed verdict. No. 6, claims error in refusing to give, each of defendant's tendered instructions, numbered from 1 to 23, both inclusive. No. 7, asserts error in the giving of each of the court's instructions from 1 to 54, both inclusive. Nos. 8 and 9, assert that the verdict is not sustained by sufficient evidence and is contrary to law.
We shall discuss these alleged errors in the order noted.
From the evidence it appears that on November 8, 1944, one Clifford Gose was shot to death in a place called 'The Corner Bar' located at 25 South West Street, in Indianapolis, Indiana. The manner in which this occurred was related by the appellant in his confession about 6:30 p. m. the next day, in substance as follows: He further stated that he did not know the man's name but knew him when he saw him, and that he fired more than one shot but did not know how many.
In his brief appellant does not discuss the alleged error in admitting in evidence State's exhibits 1 to 5 inclusive, nor from 7 to 20, both inclusive, and thereby such alleged errors are waived.
Appellant vigorously attacks the ruling admitting in evidence state's exhibit 6.
Exhibit 6 is a typewritten statement signed by the defendant on the day after the shooting and witnessed by three policemen that day; the next day it was read over to the defendant by another policeman and the defendant said it was the statement he had made the night before and this policeman then signed it as a witness also. Its admission in evidence was objected to for the reasons: That it was not executed voluntarily. That at the time the defendant was in such a state of mind that he was unable to realize the import of the document. That he was not conscious of the contents of the statement. That at the time he was 'of a temporary unsoundness of mind'. That at the time he was intoxicated. That he was not given an opportunity to consult counsel before signing the statement. The court heard evidence relative to the objection in the absence of the jury. Naturally the strongest evidence for appellant was his own, which we may summarize as follows: He remembered being at detective's headquarters at the city jail on November 19, 1944--that he had a hangover, was sick and nervous. That no force was used on him at all; that he told Mr. Goodman (the policeman who questioned him) he had no objections to talking to him; that he answered Mr. Goodman's questions; that some parts of the statement are not in his words; that he was not advised that he did not have to sign a statement of this kind; that he had no opportunity to have legal counsel present; that his mind was not functioning properly; that he was not in fear; that he had not been threatened by anybody; that he was mentally distracted by liquor and nervousness; that he had been drinking heavily the day before; that he signed the statement because he wanted to have the trial over quickly. There was no evidence of any inducement having been offered him.
§ 9-1607, Burns' 1942 Repl. provides as follows: 'The confession of a defendant made under inducement, with all the circumstances, may be given in evidence against him, except when made under the influence of fear produced by threats or by intimidation or undue influence; but a confession made under inducement is not sufficient to warrant a conviction without corroborating evidence.'
This court has consistently held that,
'A confession is prima facie admissible in evidence and the burden of showing its incompetency, under the above statute, is upon the defendant. Anderson v. State, 1933, 205 Ind. 607, 616, 186 N.E. 316; Mack v. State, 1931, 203 Ind. 355, 372, 373, 180 N.E. 279, 83 A.L.R. 1349; Hicks v. State, 1937, 213 Ind. 277, 291, 11 N.E.2d 171, 12 N.E.2d 501.
"Confessions and admissions made voluntarily or under inducements other than fear produced by physical violence, threats, intimidation, or undue influence are admissible in evidence." Caudill v. State, 1946, 224 Ind. 531, 69 N.E.2d 549, 552; Mack v. State, supra.
Since the appellant was not influenced by inducement, or by fear produced by threats, intimidation or undue influence in making the written confession offered, we find no error in admitting it in evidence. That at the time of making the written confession appellant was affected by a 'hangover' and nervousness from his drunkenness of the previous day is not a sufficient reason for rejecting it from evidence.
22 C.J.S., Criminal Law, § 730, Consciousness of Making p. 1247; 20 Am.Jur. Evidence § 525 p. 449. It is only when an accused is so drunk as to render him unconscious of what he is saying or producing a state of mania that the law will deem his confession incompetent. Intoxication of a lesser degree is for a jury to consider in determining the weight to give the confession. State v. Laughlin, 1908, 171 Ind. 66, 71, 84 N.E. 756. State v. Grear, 1881, 28 Minn. 426, 10 N.W. 472, 41 Am.Rep. 296. State v. Hall, 1932, 54 Nev. 213, 235, 13 P.2d 624; Cardoza Bell v. United States, 1931, 60 App.D.C. 76, 47 F.2d 438, 74 A.L.R. 1098 and Anno. 1102-1104. See also Anno. Ammons v. State 18 L.R.A.N.S.-- p. 788, 789.
Prior to making his confession appellant made no request for counsel. The general rule is that it is no objection to the admissibility of a confession that it was made by the accused when he was without counsel. State v. Gorham, 1894, 67 Vt. 365, 31 A. 845; State v. Patterson, 1873, 68 N.C. 292; Toomer v. State, 1910, 112 Md. 285, 76 A. 118. Had a request been made for counsel a different question would be presented. People v. Siemsen, 1908, 153 Cal. 387, 95 P. 863; State v. Neubauer, 145 Iowa 337, 124 N.W. 312.
Some states have statutes providing that an accused shall be warned in substance that, 'anything he says may be used against him', before taking a confession. Indiana has no such statute. However, the custom is frequently followed by our police department and is to be commended. It has a tendency to show the voluntary nature of the confession. However, the mere failure to give such warning would not of itself affect the admissibility of the confession in this jurisdiction.
At the close of the evidence for the state, appellant filed a written...
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