State v. Harriott

• Decision Date: 13 November 1956
• Docket Number: No. 49030,49030
• Citation: 79 N.W.2d 332,248 Iowa 25
• Parties: STATE of Iowa, Appellee, v. Jack Ronald HARRIOTT, Appellant.
• Court: Iowa Supreme Court

Page 332

79 N.W.2d 332

248 Iowa 25

STATE of Iowa, Appellee, v. Jack Ronald HARRIOTT, Appellant.

No. 49030.

Supreme Court of Iowa.

Nov. 13, 1956.

Leslie L. Boomhower, Mason City, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Dudley C. Lowry, Asst. Attys. Gen., and William Pappas, County Atty. of Cerro Gordo County, Mason City, for appellee.

OLIVER, Justice.

A county attorney's information charged defendant with larceny of a motor vehicle, contrary to section 321.82, Code of Iowa 1954, I.C.A. Trial to a jury resulted in his conviction, sentence and this appeal.

A detailed confession signed by him recited he stole the parked automobile, the evening of March 3, 1956, and sold it for $60 to Harold Walkner, who dismantled it. In the trial Walkner's partner testified to defendant's selling the automobile and its dismantling. When the loss of the car was discovered defendant was arrested and taken to the police station, March 5, at 10 or 11 P.M. He testified officers at the police station examined him about the taking of the car, from 10 P.M. until midnight, shortly thereafter for forty-five minutes, and at 2:30 A.M. for two hours; he was too nervous to sleep; he was given breakfast; at 8 A.M. officer McClintock examined him and told him, 'he (McClintock) could either give me a chance to go to the army or get me six months or a year parole * * * and he would go to bat for me.' Defendant signed the confession at 10:20 that morning. He testified he signed it because he thought he would get a parole.

The record shows he had schooling to the eighth grade and had been convicted of a felony. He testified he 'took back' his confession. However, he made no reference to any of the details therein nor to his guilt or innocence of the offense for which he was being tried.

The police officers testified defendant was interrogated for twenty or thirty minutes after 11 P.M., for a few minutes after midnight and again from about 2:30 to 3:15 in the morning. Defendant then denied his guilt. Officer McClintock next questioned him from 8 A.M. to 10:20 A.M., at which time defendant signed the confession. Officer McClintock testified defendant made the confession voluntarily and no threats or promises were made defendant then or at any other time. 'I didn't tell him that I would try to get him into the military service if he signed a statement or that I would try to get him six months.'

I. Defendant contends the confession was involuntary as a matter of law and should not have been admitted in evidence over his objections. Assuming the sufficiency of his testimony, if uncontroverted, to show the confession was involuntary because induced by the promise of a parole, the testimony of the officer to the contrary generated an issue of fact upon this point. The issue whether it was voluntary was submitted to the jury. It is clear this did not abridge defendant's rights. State v. Strable, 228 Iowa 886, 293 N.W. 441; State v. Williams, 245 Iowa 494, 500, 62 N.W.2d 742, 745, and citations; State v. Case, 247 Iowa ----, 75 N.W.2d 233, 236, 237, and citations. Nor would the circumstances that he had not been advised of his right to and did not then have counsel and was without sufficient sleep, render the confession inadmissible. State v. Hofer, 238 Iowa 820, 828, 28 N.W.2d 475, and citations; State v. Strable, 228 Iowa 886, 892, 293 N.W. 441, supra.

II. There is no merit in defendant's contention his rights were violated becuase he was arrested without a warrant and was held without charge until his confession was obtained. Section 755.4, Code of Iowa 1954, I.C.A., provides for arrest by a peace officer without a warrant. We have already held the question whether the confession was voluntary was for the jury.

III. The record of the cross-examination of officer McClintock by counsel for defendant, shows: 'Q. Didn't you say to him (defendant) you would try to get him in the service? A. I knew he couldn't get into the service, and I knew if he had a previous record, they wouldn't take him. Object to that as highly prejudicial. Overruled.' Later, in the absence of the jury, the court observed that the statement appeared inadvertent, and offered, if requested by defendant, to caution the jury to disregard it. No error appears here. Thereafter, defendant testified and admitted he had been convicted of a felony.

IV. Defendant signed the confession at 10:20 A.M., March 6. He remained in jail and was formally charged with larceny of the motor vehicle at 8:30 A.M., March 7. Immediately thereafter the jailer took defendant from his cell to the preliminary hearing of Walkner held in the same building. The charge against Walkner, not specified in the record, stemmed from his purchase of the automobile. Defendant testified he had told them he didn't want to testify. Although the record is not clear, it indicates Walkner's attorney objected to the first questions put defendant, and apparently raised the question of defendant's privilege. Of course, such claim may properly be made by the witness or his attorney, only. In any event, the objections were not sustained and defendant answered that he took the automobile and that he sold it to Walkner.

Then, according to a witness for the state, defendant, 'didn't say anything about the constitution. He merely said I don't care to answer any more questions for fear it will incriminate me.' Defendant testified, 'I didn't want to answer. So he (the county attorney) said, he asked the judge that I should be able to answer, should have to be made to answer.' The record shows the magistrate permitted the questioning of the witness to proceed.

At the trial of defendant, here upon appeal, four witnesses for the state testified that at the Walkner preliminary hearing defendant testified under oath that he took the car and sold it to Walkner. The trial court overruled defendant's objections to this testimony, which recounted defendant's testimony before he claimed his privilege. The court sustained objections to the testimony recounting the part of defendant's testimony after he claimed his privilege.

It would appear the ruling of the trial court was based upon the theory the only testimony inadmissible was that elicited after defendant claimed his privilege. Defendant had no legal representation nor was he informed of his privilege against self-incrimination. It is true he did claim his privilege after testifying he took and sold the car. Many laymen have heard of such privilege but may not know how to claim it. It is not improbable defendant claimed his privilege upon learning the procedure from the objections made by Walkner's lawyer.

In State v. Clifford, 86 Iowa 550, 551, 552, 53 N.W. 299, 300, 41 Am.St.Rep. 518, defendant, while under arrest and in jail, charged with the crime there in question, was brought before the grand jury and examined under oath, without being informed of his rights or that his answers could be used against him. The opinion states: '* * * The course of procedure pursued by the grand jury with reference to the examination of this witness was unprecedented, and, to our minds, wholly unjustifiable from any point of view. They had no right to compel the defendant, then in custody, and charged with the commission...