State v. Hodge

• Decision Date: 18 October 1960
• Docket Number: No. 49873,49873
• Citation: 252 Iowa 449,105 N.W.2d 613
• Parties: STATE of Iowa, Appellee, v. Kenneth Lee HODGE, Appellant.
• Court: Iowa Supreme Court

Page 613

105 N.W.2d 613

252 Iowa 449

STATE of Iowa, Appellee, v. Kenneth Lee HODGE, Appellant.

No. 49873.

Supreme Court of Iowa.

Oct. 18, 1960.

Rehearing Denied Jan. 13, 1961.

Robert M. Stuart and John M. Peters, Council Bluffs, for appellant.

Norman Erbe, Atty. Gen., Marion R. Neely, Asst. Atty. Gen., and Kenneth Sacks, County Atty., Pottawattamie County, Council Bluffs, for appellee.

THOMPSON, Justice.

On December 25, 1958, about 6:30 p. m., an employee of the operators of the Wilcox greenhouse, in Council Bluffs, found the dead body of Harry Minds, also an employee, in greenhouse No. 48. There is evidence that the deceased had been badly beaten about the head; one of the investigating officers testified there was a large hole in the top of the head and that much hair and portions of the skull were gone from the head. A piece of iron pipe about 31 inches long, bearing stains of blood and with hair attached to the bloody end, was found nearby.

We shall not at this point go into a detailed recital of the facts shown in evidence. So far as they are material upon the errors assigned by the defendant upon this appeal, they will be related as we consider the various contentions made. It will be sufficient to say here that suspicion soon attached to the defendant and police officers visited his home. He was taken to the police station. Later the officers went to defendant's home again, and there found some clothing which he said was his. There is evidence the clothing was stained with human blood. The defendant was also an employee of the greenhouse, and had admittedly been there on the afternoon of December 25th. He also admitted on the witness stand having a fight with Minds, and leaving him unconscious on the floor of greenhouse No. 48.

The defendant was detained in custody through December 26th, and was questioned at various times and considerably by the county attorney and police officers. No charge was filed against him until December 27th. In the meantime, and about 11:50 p. m. on December 26th, he signed a confession in which he admitted hitting Minds on the head with a piece of pipe he had picked up, as Minds went down a set of steps ahead of him. He said he did not know how many times he struck Minds, but after the latter fell the defendant took his billfold from his left rear pocket and left. He took two dollars from the billfold and threw it away; later showing the police where he had thrown it, and it was recovered. The confession also admitted that the articles of clothing found by the officers at defendant's home were his, and that the pipe found in the greenhouse was the one with which he struck Minds.

I. The defendant's first assigned error is based upon the refusal of the trial court to give a requested instruction dealing with the weight and value to be given to character evidence. The requested instruction was this: 'You are instructed that there is evidence presented by the defendant relative to his disposition and also as to his character and his peaceable disposition, and that such evidence may be considered by you as bearing upon the character and disposition of the defendant, and if such evidence is sufficient in your mind as to generate a reasonable doubt as to the guilt of the defendant, you may consider such evidence as premitting an acquittal.'

The court gaves its own instruction No. 23 dealing with the subject. It is quoted: 'The defendant has introduced testimony tending to show that his general reputation as being a peaceful and law-abiding person was good. This testimony is competent and should be considered by you in connection with all the other evidence in the case. It is not, however, a defense to crime actually committed, but it is a circumstance to be considered by you in connection with all the other evidence in determining the guilt or innocence of the defendant. It may be considered as tending to show that a man with such a reputation would not be likely to commit the crime charged. It should be given consideration irrespective of whether other evidence is conclusive or not, and it is for you to determine from all the facts and circumstances in the case what weight should be given to such testimony.'

The defendant at this point relies much on State v. Ferguson, 222 Iowa 1148, 270 N.W. 874. We think the case does not go so far as the defendant contends. We there said that the challenged instruction was lacking, in certain essential elements. We said, at pages 1156 and 1157 of 222 Iowa, at page 880 of 270 N.W.: 'Nothing is contained in the instruction as to the purpose for which this evidence may be considered. The jury is nowhere told that, if they find that the defendant's character for morality and honesty is good, they may consider such evidence in determining whether a man of such good character for morality and honesty would be apt to commit the crime with which the defendant is accused. The jury is nowhere told that, if they find the defendant's character for morality and honesty to be good and, if in considering this evidence with other evidence in the case, they entertain a reasonable doubt as to defendant's guilt because of his good character, they should acquit him.' The opinion then says that the law is well established that evidence as to good character may be considered by a jury with all the other evidence, and if it, with the other evidence, raises a reasonable doubt as to the guilt of the accused, it should acquit.

We find nothing here that is in conflict with Instruction 23 set out above, or which shows nay omission of an essential element therefrom. It told the jury the evidence of good reputation as a peaceful and law abiding citizen should be considered by it with all the other evidence in the case; and elsewhere the jury was told that it should try the case upon the evidence before it, with reasonable doubt being clearly defined. Instruction 23 also advised the jury it should consider whether a man with such a reputation would be likely or not to commit the crime charged. It was also told this evidence should be considered whether other evidence was conclusive or not. There is considerable discussion of the proper instruction as to evidence of good character or reputation in State v. Fador, 222 Iowa 134, 268 N.W. 625, and the instruction here given meets the tests there set up. In effect, Instruction 23 told the jury evidence of good reputation, while not a defense to a crime actually committed, should be considered in determining the guilt or innocence of the accused; in other words, whether the crime charged was committed. It was also told it might consider whether a person of good reputation such as the defendant was depicted to be would be likely to commit the crime of which he stood accused. The over-all effect of the instruction was that the evidence of good reputation should be taken with all other evidence in determining the guilt or innocence of the defendant, and the jury should give it such weight as it believed it should have. Of course this instruction was to be taken in connection with all other instructions in the case; and we think the jury could not fail to understand that this item of evidence was a part of all the evidence and should be taken into account with all other evidence in determining its verdict. We have set out above the omissions from the given instruction in the Ferguson case, supra. We think Instruction 23 here, fairly considered for what it says and with the other instructions given, meets all the objections found in Ferguson, and gave the defendant all he was entitled to have on the subject.

The requested instruction would have told the jury evidence of good character might generate a reasonable doubt of guilt. It nowhere refers to the other evidence in the case. In the Ferguson case the requested and refused instructions which we approved included the words 'in connection with all the evidence' and 'together with all the other facts in evidence'. The requested instruction here went much farther than the doctrine of the Ferguson case extends. In State v. Crisman, 244 Iowa 590, 598, 57 N.W.2d 207, 212, we quoted with approval from 20 Am.Jur., Evidence, Section 1219, page 1073: 'Such proof must be considered by the jury in connection with all the other testimony and not independently thereof, and the guilt or innocence of the defendant must be determined from all the testimony.' We also quoted from State v. Fador, supra, language which is expressly applicable here: 'we think the jury was clearly told and sufficiently understood from the instructions that if, considering all the evidence, including the evidence as to good reputation, they and any reasonable doubt as to the defendant's guilt, it was their duty to acquit him.' See also State v. Donovan, 61 Iowa 278, 280, 16 N.W. 130, 131. The assignment is without merit.

II. Next the defendant complains of the admission of a purported confession, which he alleges was obtained in violation of his constitutional rights and of due process. It appears he was taken into custody--he was told the captain would like to talk to him and taken to the police station--some time during the night of December 25-26 following the finding of the body of the deceased in the greenhouse. He was held there, with the exception of trips to his home and to the vicinity of the greenhouse, until December 27th, when a preliminary charge of murder was filed against him in the Council Bluffs Municipal Court and he was arraigned. During this time he was questioned intermittently by the county attorney and various police officers; and about 11:50 p. m. on December 26th he made and signed the challenged confession. During this time he did not have the advice of counsel or he asserts, an opportunity to procure one or to communicate with his wife. He testified that he was kept in a cell with only a steel shelf for sleeping, and was given nothing to eat. He says he was given coffee....