State v. Case, 48713

• Citation: 75 N.W.2d 233,247 Iowa 1019
• Decision Date: 09 May 1956
• Docket Number: No. 48713,48713
• Parties: STATE of Iowa, Appellee, v. Elmer Arlo CASE, Appellant.
• Court: Iowa Supreme Court

Page 233

75 N.W.2d 233

247 Iowa 1019

STATE of Iowa, Appellee, v. Elmer Arlo CASE, Appellant.

No. 48713.

Supreme Court of Iowa.

May 9, 1956.

Bradshaw & Crawford, Fort Dodge, for appellant.

Dayton Countryman, Atty. Gen., Raphael B. R. Dvorak, and George West, Asst. Attys. Gen., and Leo J. Tapscott, County Atty., Des Moines, for appellee.

GARFIELD, Justice.

A jury found defendant, a married man age 27, guilty of what is commonly called statutory rape, in violation of section 698.1, Code 1954, I.C.A. He has appealed from the judgment of conviction. The girl was Nancy Stepp, two days less than twelve years old.

On the night of June 22-23, 1954, defendant and his roommate Huss visited numerous taverns in Des Moines until nearly 1:30 a. m. Defendant then went to the apartment of a Mrs. Grundman with whom he was friendly but found she was not there. He lay down on a bed the state's testimony shows was occupied by the girl Nancy who was 'baby sitting' with Mrs. Grundman's 6-year-old son. About an hour later Mrs. Grundman and Nancy's mother, a near neighbor, found defendant and Nancy in the bed together.

Nancy's evidence and a confession signed by defendant are to the effect he had intercourse with the girl before her mother and Mrs. Grundman found them in the bed. On the trial defendant testified he first knew Nancy was in bed with him when he was wakened by the two women and he denied any misconduct with her. About 3 a. m. Huss, defendant, Nancy, her mother and Mrs. Grundman went to a hospital so a doctor could examine Nancy. An intern examined the girl and testified he found some irritation of her vaginal mucosa, a small tear in the hymenal ring which had occurred within 12 hours and evidence of recent bleeding. He also said the insertion of such an object as the male organ could have caused the condition he observed.

When the intern informed the adults who went to the hospital the condition in which he found Nancy, Huss knocked defendant down and kicked him and Mrs. Stepp tore his shirt off and scratched him. The police soon arrived and took defendant into custody.

Later the same morning, between 8:15 and 9:00, two police detectives talked to defendant who gave them a written confession admittedly signed by him. Defendant's first complaint on this appeal is that the trial court erred in admitting the confession in evidence because, it is said, it was not proven to be voluntary and the undisputed evidence shows it was obtained by promises and duress.

I. The test of the admissibility of a written confession is whether it was made freely and voluntarily, without compulsion or inducement of any kind. It is the trial court's province to determine as a preliminary question whether a confession was made with that degree of freedom to justify its admission in evidence or, in case of doubt and of a conflict in the testimony, to submit the question to the jury under proper instructions. If it clearly appears the confession was induced by force, threats or promises the question is one of law for the court and the statement should be rejected. State v. Crisman, 244 Iowa 590, 592, 57 N.W.2d 207, 208, and citations; State v. Williams, 245 Iowa 494, 500, 62 N.W.2d 742, 745, and citations; Note 4 Drake Law Review 123-5.

Here the question whether the confession was voluntary was submitted to the jury under instructions not complained of. This was proper. It does not clearly appear the statement was involuntary. It is true defendant testified he felt 'lousy' and the detectives to whom the paper was given told him if he signed it the charge would be dropped, his family would not be brought into it and he would be released from jail. However, the detectives said no promises or threats were made and defendant was not coerced in any way. It is not claimed the officers used physical force or violence.

This confession states it was given of defendant's free will, without threats or promises from the officers and with knowledge it might be used against defendant in court. A written confession which on its face purports to have been freely and voluntarily given is prima facie voluntary and the burden rests upon defendant to show it was involuntarily given. State v. Crisman, supra, 244 Iowa 590, 593, 57 N.W.2d 207, 209, and citations; State v. Webb, 239 Iowa 693, 699, 31 N.W.2d 337, 340, and citations; State v. Boston, 233 Iowa 1249, 1253, 11 N.W.2d 407, 409; State v. Bisanti, 233 Iowa 748, 751, 9 N.W.2d 279, 281, and citations; Note, supra, 4 Drake Law Review 123.

Regarding the voluntary character of the confession this case is strikingly similar to State v. Crisman, supra, which holds admission of the confession was not error. State v. Sims, 241 Iowa 641, 645-647, 40 N.W.2d 463, 465-466, also holds the voluntary character of the confession was for the jury although defendant's testimony (not present here) he was frequently beaten and threatened by the officers raised a sharp dispute on that point.

There was a much stronger showing than we find here of the involuntary nature of the confession in State v. Thomas, 193 Iowa 1004, 188 N.W. 689; State v. Johnson, 241 Iowa 135, 39 N.W.2d 123, and State v. Archer, 244 Iowa 1045, 1049, 58 N.W.2d 44, 46, cited by defendant. The Johnson and Archer decisions are briefly analyzed in State v. Williams, supra, 245 Iowa 494, 500-501, 62 N.W.2d 742, 745.

II. It is said the court erred in limiting defendant's evidence of his good character to that of general moral character and in rejecting testimony as to the traits of character involved in the crime charged.

Fourteen character witnesses testified for defendant, including his wife, his parents, an aunt and uncle. Incidentally, only one (his landlady) lived in Des Moines where defendant had been working for several months. The others were from Fort Dodge where defendant formerly, and also at the time of trial, resided and from Mason City where defendant's family lived at the time of the alleged crime. Most of the witnesses said defendant's reputation was good, for general moral character, for truth and veracity, and for having a quiet and peaceful disposition.

Basis for this claim of error appears to be the sustaining of the state's objections as improper in form to these questions asked the witness Joselyn, defendant's employer at the time of trial: (1) 'State whether or not defendant in your opinion possesses a character that does not contain those traits that would make one likely to commit rape.' (2) 'State whether or not defendant possesses traits of character that show kindness and consideration and a positive attitude toward children.' (3) 'I will ask you with regard to his general reputation and character so far as it relates to gentleness and a kindly and considerate disposition, whether or not defendant possesses those qualities of character and reputation.'

In addition to the rulings just referred to, one answer of the witness Joselyn was stricken but almost the identical answer of the same witness and most of the other defense witnesses was received without objection. Another question was first held objectionable but substantially the same question was later answered without objection by Mr. Joselyn and most of the other witnesses. Obviously defendant was not prejudiced by the two adverse rulings last mentioned. State v. Whitney, 247 Iowa ----, 76 N.W.2d 890 (filed May 9, 1956), and citations; 3 Am.Jur., Appeal and Error, section 1031, pages 588-9.

The objections were rightly sustained to the three questions quoted above. It was proper for defendant to show his good character either by proof of his general reputation or of his real character. The distinction, roughly stated, between character and reputation is that character is what a person actually is while reputation is what one's neighbors say he is. State v. Poston, 199 Iowa 1073, 1074, 203 N.W. 257, 258; State v. Hartung, 239 Iowa 414, 426, 30 N.W.2d 491, 498; Article by Dean Mason Ladd, 24 Iowa Law Review 498, 506.

However, proof of good character may and must relate particularly to that trait of character involved in the crime charged so guilt thereof is rendered improbable. State v. Ferguson, 222 Iowa 1148, 1161, 270 N.W. 874, and citations; Halligan v. Lone Tree Farmers Exchange, 230 Iowa 1277, 1285, 300 N.W. 551, 555; State v. Evenson, 237 Iowa 1214, 1217-1218, 24 N.W.2d 762, 764; 22 C.J.S., Criminal Law, § 677e, page 1075; 20 Am.Jur., Evidence, section 327.

For example, upon a charge of homicide the traits of character usually involved are whether accused is peaceable and law-abiding. In larceny and robbery the traits involved are honesty and integrity. Upon a charge of perjury the traits are truth and veracity. In sex crimes, at least where (as here) force and violence are absent, the trait involved is morality. See article by Dean Ladd, supra, 24 Iowa Law Review 498, 528, and citations.

The second and third questions, quoted above, asked the witness Joselyn are not confined to the trait of character involved in the crime charged except possibly indirectly. They do not relate to morality but to gentleness, kindness and consideration toward children. The first quoted question refers to no particular trait of character the law recognizes as involved in the crime but calls for an opinion as to whether defendant possesses unmentioned traits that would make his guilt unlikely. While no decision squarely in point has come to our attention these precedents lend support to our conclusion. State v. Evenson, supra, 237 Iowa 1214, 1217, 24 N.W.2d 762, 764; State v. Dexter, 115 Iowa 678, 682, 87 N.W. 417; Wentz v. State, 159 Md. 161, 150 A. 278; State v. Thompson, 58 Utah 291, 199 P. 161, 38 A.L.R. 697, 705. See also 22 C.J.S., Criminal Law, § 677e, pp. 1075-1076, and footnotes.

III. Defendant contends the court erred in not declaring a mistrial upon defendant's motion on the ground of misconduct of the prosecuting attorney in using in argument the name of one...