People v. Thomlison

• Decision Date: 24 September 1948
• Docket Number: No. 30237.,30237.
• Citation: 81 N.E.2d 434,400 Ill. 555
• Parties: PEOPLE v. THOMLISON et al.
• Court: Illinois Supreme Court

400 Ill. 555

81 N.E.2d 434

PEOPLE

v.THOMLISON et al.

No. 30237.

Supreme Court of Illinois.

Sept. 24, 1948.

Error to Circuit Court, Madison County; R. W. Griffith, Judge.

Albert Lee Thomlison and Robert Lee Karrick were convicted to robbery, and second-named defendant brings error.

Judgment reversed and cause remanded.

Francis J. Manning, of Wood River, and Jacoby, Patton, Manns & Coppinger, of Alton, for plaintiff in error.

George F. Barrett, Atty. Gen., and C. W. Burton, State's Atty., of Edwardsville (A. Austin Lewis, of Granite City, and Kenneth F. Kelley, of Alton, of counsel), for the People.

GUNN, Justice.

Robert Lee Karrick and Albert Lee Thomlison were indicted for the crime of robbery in the circuit court of Madison County, tried before a jury, found guilty, and sentenced to the penitentiary. Robert Lee Karrick alone has prosecuted a writ of error to this court.

The indictment was returned in January, 1947, charging that the robbery had been committed November 7, 1945. The evidence shows that one Henry Schneehage was robbed on the morning of November 7, 1945. He had just started to drive to his tavern in Alton, a few minutes after 5 A.M., and as he started the car into the road somebody from the back seat of the car pressed something, which he assumed to be a gun barrel, to the back of his neck and told him to keep going. After driving about a half mile he was told to hand over the sack in which he carried the money. The person then got out of the car and into another car behind Schneehage, and ‘they followed me for some time.’ It was dark and he did not see the man's face, and could not recognize him or the car following, nor did he recognize or identify Robert Lee Karrick as one of the robbers; and said he assumed it was a gun barrel pressed to his neck because he could feel the hole in it.

Something over a year afterwards Thomlison was arrested, and on December 3, 1946, plaintiff in error, Karrick, was arrested on a warrant in Chicago by the sheriff of Madison County, brought to Alton, turned over to the police, and the next day signed a confession, which the People claimed to be voluntary; and was tried and convicted upon this alleged confession. There was substantially no other evidence in the case.

The plaintiff in error claims the confession was not voluntary, and was extorted by brutality of the police on the evening of December 3, 1946. The evidence of Karrick discloses he was arrested in Chicabo by the sheriff of Madison County, on a warrant issued by a justice of the peace of Alton township, and was brought back to Alton. He was not taken before the justice of the peace, as required by statute ( Ill.Rev.Stat.1947, chap. 38, pars. 673-679; People v. Frugoli, 334 Ill. 324, 166 N.E. 129), nor was he taken to the county jail, where the statute required him to be kept before preliminary hearing or trial, but was delivered to the police in Alton, without any authority other than their request.

At the time Karrick was delivered to the police he had no wounds or bruises on his face, neck or mouth. Both the sheriff and his deputy agree to this. Upon delivery at the police station Karrick was first placed in a cell, later taken to a room back of the sergeant's desk. The chief of police, Barkley, and policeman Austin sat down on each side of him and asked if he remembered anything about December 6 or 7, 1945. He said he did not, and if he was being accused of implication in that robbery he was not guilty, and would like to have an attorney or somebody see him. Karrick's testimony from thereon is as follows: ‘The chief said I would see no attorney or anyone else until I gave them what they wanted. Austin hit me in the mouth. The chief said Thomlison had confessed and implicated me, and said ‘you are going to do the same,’ and started beating me with his fists. This went on for about two hours and I could hardly stand it; my eyes were blackened, my lips split, three teeth knocked loose, my temple bruised, and my neck red and swollen and I could hardly stand it. Once my head dropped down, and one of them grabbed me by the hair and hit me in the throat. I told Austin he had knocked my bridgework loose, and he replied ‘I will knock your whole God damn teeth out.’ After being beaten I finally said I would confess to murder or anything if they wanted me to. Barkley, the chief, then indicated exactly how he wanted my confession to read, and after talking with me told me what to put in exhibit 2. There was nobody present at this meeting on the evening of December 3rd except Austin and Barkley. The next morning I was taken before Lieut. Waller, and told him as much as I could remember of what Chief Barkley had told me to say, and when I forgot a part of it Waller reminded me of it. The words were those of Lieut. Waller, but I signed it. I said nothing then about the beating. I was so shaken up, and in such condition I did not know all that was going on. It took me an hour to sign all of the different places.'

The foregoing is the substance of Karrick's testimony both in the preliminary hearing on the confession and also upon the witness stand in his own defense. The evidence of six witnesses positively shows that on December 5, nearly forty-eight hours after his first incarceration, his eyes were discolored, his teeth loose, face bruised, lips split, and other contusions upon the neck and face. This was his physical condition after the voluntary confession. We can only conjecture his mental condition. It is true Austin denies this brutal assault upon Karrick, and Barkley says he did not strike him, but he did not know what the other officers did. Waller says he saw a bruise on his left eye, but did not notice any other, but that Karrick had said he had bumped his head against a door. The evidence of the witnesses to the confession of December 4, four in number, was rather inconclusive. Hawkins, a justice of the peace, said he did not notice any bruises; Smothers stated there were no bruises to his knowledge; Duffy did not see a black eye; and Barkley said there was no force used then (meaning at the time the paper was signed), December 4, and said none was used by him on the day before. All four of these witnesses concur in saying there was no force used at the time of the confession on December 4, and Karrick expressly says there was no force used at that time. Barkley and Austin do not deny Karrick wanted a lawyer, nor the separate session the night of December 3.

From these facts the court found the confession of December 4 was voluntary. Apparently the basis for this ruling was that what had taken place in the cell on the evening of December 3 had no connection or effect upon the confession made in the police office on December 4. However, Barkley, the chief of police, also testified that Karrick the evening before admitted he was connected with the robbery, so as a matter of fact the testimony shows that the police officers relied upon a confession started on the evening of December 3 and consummated the next morning before other witnesses. Austin was not called upon as a witness until rebuttal of Karrick's testimony in his own behalf, and there were other policemen around the station whose names are not designated, who were not offered as witnesses.

The evidence upon the question of violence used toward the defendant consists of that of a photographer who took a picture; of his mother who was outside, and had been in Alton awaiting his arrival, with an attorney; his brother; his brother's wife; his aunt, and his stepfather. A fair example of the testimony of these witnesses is substantially as follows: ‘When I first saw him I was shocked. His left eye was pretty near shut and very bruised and swollen. It was black. And his other eye was black and swollen too but not as bad as the left. On the side of his face was a bruise where the hide had been removed. Some hide had been removed from the other side too. His lip was swollen larger than normal.’ The testimony of the other witnesses was substantially the same. This evidence is positive compared with the inconclusive and evasive testimony of the four witnesses to the December 4 confession.

The principal question is whether the State established the confession of Karrick was voluntary. From the recital above it will be seen that the People confined their proof to what happened on December 4, in the presence of several officers who had no part in the assault. It has given but little attention to what occurred the evening and night of December 3 and what its effect would be upon the confession on the following day. If it is lawful to extract a confession by brutality and violence by one set of officers in the night, and then the next day have the defendant repeat the confession in the presence of other officers not participating in the violence, then the confession upon which he was convicted was voluntary.

Whether a previous assault resulting in a confession has an effect upon the character of a subsequent confession is the principal question in this case. Confessions extorted by violence, brutality, promise, or unlawful confinement for an unreasonable length of time are illegal, and may not be offered or received in evidence against the accused. A voluntary or freely made confession of guilt is proper evidence of a high and convincing character. The duty devolves upon the trial court to determine whether the confession is voluntary, and this is usually determined by hearing the evidence on such question out of the presence of the jury. We have held that all of the witnesses to the confession, or those taking a part in obtaining it, must be produced. The burden is upon the State to show the confession is voluntary. The facts show that Karrick was delivered uninjured to the police of Alton the night of December 3, and on the next day was produced before the committee of witnesses, bruised, eyes discolored, face bruised, and contusions,...