State v. Harding

• Decision Date: 13 December 1927
• Docket Number: 38593
• Citation: 216 N.W. 642,204 Iowa 1135
• Parties: STATE OF IOWA, Appellee, v. BROY HARDING, Appellant
• Court: Iowa Supreme Court

216 N.W. 642

204 Iowa 1135

STATE OF IOWA, Appellee, v. BROY HARDING, Appellant

No. 38593

Supreme Court of Iowa, Des Moines

December 13, 1927

Appeal from Harrison District Court.--J. S. DEWELL, Judge.

A county attorney's information was filed against the defendant and his brother, David Harding, charging them with entering the premises of the Modale Savings Bank, with intent to rob said bank. The defendant, Broy Harding, entered a plea of not guilty, and was granted a separate trial. From a judgment of conviction upon a verdict of guilty the defendant, Broy Harding, appeals.

Affirmed.

William P. Welch, for appellant.

John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, Roy Havens, County Attorney, and C. W Kellogg, for appellee.

WAGNER J. EVANS, C. J., and DE GRAFF, ALBERT, and MORLING, JJ concur.

OPINION

WAGNER, J.

The record in this case is a revelation of one of the most daring holdups ever perpetrated within the confines of our state. About 9:30 A. M. on the 15th day of December, 1926, two bandits, well armed, entered the front door of the Modale Savings Bank. There were at that time behind the counter in the bank the cashier and another employee, and two citizens outside the railing. The bandits wore false mustaches, Scotch caps, and handkerchiefs around their necks, in such manner as by the use thereof they could cover the lower portion of their faces. As they entered the bank, with their revolvers drawn, there came from them such exclamations as "Stick 'em up." "No fooling." "We mean business." "We want your money." The cashier, Sassaman, replied, "No, no, you cannot have it;" and one of the bandits immediately shot him in the head, though not fatally, but the injury was sufficient to cause him to fall to the floor. The other employee of the bank started out of the back door, when one of the bandits shot at him; but the bullet passed over his head, and he escaped. The two bandits passed behind the counter, obtained possession of the gun there kept for the protection of the employees, and at the point of revolvers commanded the wounded cashier to open the safe, threatening to kill him if he refused. The cashier complied with their command. The bandits obtained money of various denominations in a sum in excess of $ 4,000, and then backed the cashier and others into the vault, and escaped out of the front door, shooting one Jackson in the leg as he passed along the street, and jumped into a Ford car, fully curtained,--except the right front curtain,--and made their escape. They went south a mile or a mile and a quarter, and then turned west. Two citizens pursued them to the corner, and where the bandits turned west, they turned east, and arrived at California Junction by a different route; and somewhere along the road they discovered tracks that turned off into the brush near Blair Bridge, and, following the track for a mile and a half, they came to a shack. They saw a car pull away from the shack, going south. At the shack they found some empty cartridges and false mustaches. These two parties then went to a farmhouse and called the Modale authorities. They then returned to the shack and pursued the track down the river about three and one-half or four miles, where they found a car which had been burned, with a hole in the gasoline tank.

According to the record, this was the last seen of the bandits, or those thought to be the bandits, until that same afternoon, about 4 o'clock, when, at a house conducted by Mrs. Wilson, at 1713 California Street, Omaha, some of the police officers of Omaha and the sheriff of Pottawattamie County, Iowa, arrested the defendant and his brother, David Harding, who were suspected to be the bandits. It appears that the officers and the two Hardings arrived at this place about the same time. The Hardings came there in a taxicab, and shortly after they went into the house, the officers entered, and the defendant attempted to escape, but was captured. His brother, Dave, was pretty well intoxicated at the time, and started to scuffle with one of the officers, who pushed him against the frame of the door, and felt him for a gun; and a considerable sum of money was found on Dave's person at that time. The sum of $ 22 was found on the person of the defendant; and under the mattress on a bed in a room which the lady who conducted the house said, in the presence of the Hardings, was the room of the defendant and his brother, a large sum of money was found, a portion of which was identified as money taken from the Modale Savings Bank. The defendant and his brother were taken to the police station, and that evening the defendant made a confession, and the next morning, his brother, Dave, made a confession, and the defendant at that time signed a second confession.

It is shown by the record that Louise Hitchings, a witness for the State, was proprietress of a cafe in Missouri Valley, and that, while she was in the cafe on the evening of December 14th (the night before the robbery), she saw the defendant in her restaurant with another man, who put in a long distance call for 1960 Jackson, Omaha; and she heard the man ask over the telephone whether Mrs. Harding was there, and heard him also say: "This is her husband calling. We are in Missouri Valley, and if all goes well, we will be home to-morrow." It is also shown by the record that a Ford car was stolen from the streets of Omaha on the evening of the 14th of December, and that the car hereinbefore mentioned as being burned at the river, on the morning of the 15th, bore the number plate of said car.

The first confession of the defendant hereinbefore referred to, which was obtained on the evening of December 15th, was signed by him, and was witnessed by the sheriff of Pottawattamie County and Harry H. Rubenstein, a reporter of the "Omaha Daily New," and several others. The second confession of the defendant was signed by him, and witnessed by William A. Gurnett (a police officer), Harry H. Rubenstein, as aforesaid, and two others. The voluntary character of the confessions is established by the testimony of Rubenstein, the police officers, and the sheriff. The confessions were by questions and answers. In the first confession, after stating his name, place of residence, age, and occupation, he was asked:

"I am going to ask you about the holdup of a bank at Modale, Iowa, which occurred about 9:30 A. M., December 15, 1926. You are aware that the Constitution of the United States and of the state of Nebraska, as well as the Constitution of the state of Iowa, among other things provides that you are not compelled to make any statement which might tend to incriminate you, and that anything that you say here may be used against you later. Now, knowing this, do you still wish to make a statement? A. I do."

He then answered questions, the answers to which we give in abstract form, as follows:

"I was not in Omaha this morning. Dave and I left here last night, and went down to that little house below the bridge near Blair, where we stayed all night. We left there about 8 o'clock this morning, and went straight to Modale. I went into the Modale Savings Bank, and Dave stayed out on the sidewalk. I stuck them fellows up, and got this money. I shot while I was in the bank, but not after coming out. We then went straight for the river. I set the car afire. I threw the gun that I used in the river. I had on a false mustache when I pulled this job. After setting the car on fire, I crossed the river to the Nebraska side. Dave was with me during all this time. We walked all the way from Blair to Omaha. We stole a car last night at Sixteenth and Nicholas Streets. We then went to Missouri Valley, and then to the shack. We got back to Omaha just before we were arrested. Dave and I were together all the time. I gave all the money to Dave.

"Q. Do you make this statement of your own free will? A. Yes. Q. Is this statement the whole truth? A. Yes. Q. Have you been promised anything to make this statement? A. No."

In the second confession, obtained on the morning of December 16th, appeared the following:

"Q. Now, Mr. Harding, I want to ask you some questions about the theft of an automobile and the robbery of the Modale Savings Bank. Before I ask you any questions, however, I want to advise you that the laws of this state and the state of Iowa protect you against making any statement which might incriminate yourself, and you do not have to answer my questions or the questions of any other officer. I also want to warn you that anything you say to me can be used against you. Do you understand all of that? A. Yes, sir. Q. Well knowing and understanding it, do you want to answer my questions? A. Yes, sir. Q. Did you read a statement made by your older brother in this office this morning? A. Yes, sir. Q. Did your brother David tell practically the truth in that statement? A. That is as near the truth as I could tell it. There might be some small mistake of memory, but that is about as close to the truth as anyone could tell it. Q. Well, just tell me from the start to finish how you happened to rob this bank. A. I knew about the bank at Modale, and I suggested to Dave that we rob it. Dave and I were both up against it for money, and had families. About two weeks ago, I went to Modale to look the job over, and I went into the bank and got a dollar's worth of dimes from the cashier. There were three men in the bank at that time, and it looked like the job could have been done without much danger. I told Dave what it looked like over there, and we decided to rob the bank. A few days ago, Dave got two pistols from a pawnshop in Omaha. He gave me a .45-caliber pistol. He had shells for the pistol also, and gave me them. On the night of ...