State v. Hofer, 46993.

CourtUnited States State Supreme Court of Iowa
Citation28 N.W.2d 475,238 Iowa 820
Docket Number46993.
PartiesSTATE v. HOFER.
Decision Date29 July 1947

28 N.W.2d 475

238 Iowa 820


No. 46993.

Supreme Court of Iowa

July 29, 1947

[28 N.W.2d 476] [Copyrighted Material Omitted] [28 N.W.2d 477]

James E. Remley and Remley & Remley, all of Anamosa, for appellant.

Robert L. Larson, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen., C. F. Shimanek, Co. Atty., of Monticello, and Glen J. McLaughlin, of Anamosa, for appellee.

GARFIELD, Justice.

Defendant Hofer, age 36, and one Larson were prisoners in the men's reformatory at Anamosa. Each morning they were taken in an automobile by John Hinz, foreman of the prison cheese factory, to work there. When the day's work was done Hinz returned the prisoners to the reformatory. They had planned to escape while Hinz was returning them to prison on June 12. The plan was that Hofer was to ride in the rear seat of the automobile, would strike Hinz in the head with a hammer and Larson, in the front seat, would then drive the car.

[238 Iowa 824] Defendant concealed a hammer on his person when he got in the automobile and a little later at a signal from Larson struck Hinz on the top of the head with the hammer. Larson then struck Hinz in the face with his fist and yelled to defendant to 'hit him harder.' Hofer then struck Hinz in the head a second and harder blow with both hands upon the hammer handle. Blood came streaming down Hinz' face. The car was stopped and the prisoners moved Hinz into the rear seat where defendant held him down. Hinz started to fight back and Hofer again hit him in the head at least once or twice with the hammer. However, Hinz managed to open a door to the car and get out while the prisoners drove on. Hinz was picked up by a passing motorist and taken to a hospital where he died the following evening, without regaining consciousness, from a fractured skull caused by the hammer blows.

About 46 hours later defendant and Larson were apprehended some 50 miles away and returned to the reformatory. On June 17 a county attorney's information was filed against Hofer charging him with murder in the first degree. On the same day defendant appeared for arraignment, was informed of his right to counsel and stated he had no counsel and no funds with which to procure one. The court then appointed James E. Remley, Esq., an able and experienced attorney, to represent Hofer. On June 19, defendant pleaded not guilty. Trial commenced on September 30. The jury returned a verdict of guilty of first degree murder and, pursuant to Code section 690.5, directed the punishment be death. (All Code references are to the Code of 1946.) Defendant was accordingly sentenced to be hanged.

I. Defendant contends the trial court was without jurisdiction because no order [28 N.W.2d 478] for a bench warrant was made and no warrant issued. We hold the contention without merit.

Upon the filing of an indictment or county attorney's information against a defendant not in custody nor under bail it is the duty of the judge to order a bench warrant to issue for his arrest. Code, sections 774.2, 769.12. We assume, without deciding, Hofer was 'not in custody,' within the above statute, although he was a prisoner in the reformatory. The record does [238 Iowa 825] not show any order for, nor issuance of, a bench warrant. Nor was there any order, so far as shown, under Code, section 774.10, for the production of defendant for trial. However, defendant was arraigned, entered a plea of not guilty and was present in person with counsel throughout the proceedings below. He did not there raise the question presented here.

This contention goes merely to the question of jurisdiction of defendant's person--to the manner of bringing him before the the court. Such a contention must be presented to the trial court and cannot be first raised upon appeal. It is waived by pleading not guilty and going to trial. It is unlike questions that go to jurisdiction of the subject matter which cannot be waived but may be raised at any stage of the proceeding. 22 C.J.S., Criminal Law,§§ 161, 162, pp. 257-260; 14 Am.Jur. 917, section 214; State v. Melvern, 32 Wash. 7, 72 P. 489, 491; State v. Warner, 165 Minn. 79, 205 N.W. 692; Ford v. United States, 273 U.S. 593, 606, 47 S.Ct. 531, 535, 71 L.Ed. 793, 799, 800, and authorities cited; Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044, 1045, 1046. See also State v. Ray, 50 Iowa 520; State v. Kinney, 41 Iowa 424.

We pointed out in Hottle v. District Court, 233 Iowa 904, 906, 907, 11 N.W.2d 30, 32, that the statements now relied upon by defendant from State v. Judkins, 200 Iowa 1234, 1236, 206 N.W. 119, 120 are dicta. Further, in the Judkins case the accused had never appeared personally in court, had not been arraigned or entered a plea, nor had he been present throughout a trial. All of these matters, absent in the Judkins case, are shown here.

II. Defendant contends exhibits 4 and 5 which the state alleges are confessions were involuntary as a matter of law. The trial court submitted to the jury the question whether either exhibit was involuntary. We think this was proper.

Defendant was apprehended about mid-afternoon on June 14 by several peace officers. He was dirty, very tired and worn out. About 4:30 p.m. at the direction of the warden of the reformatory Hofer left the place of his capture in an automobile accompanied by three employees of the reformatory. About that [238 Iowa 826] time the warden suggested to two state investigators or 'agents' who were at the scene that they return to the prison and see if Hofer would give them a statement. The agents arrived at the reformatory about the time defendant and his custodians did.

Hofer was permitted to change clothes--those he had been wearing were muddy--and was taken to a room in the reformatory used by the board of parole to interview prisoners. He was not handcuffed nor otherwise shackled. He looked a little stronger than when apprehended. A uniformed guard was in the room and the employee who sat in the car with defendant on the return trip was there part of the time. The two investigators were present and the warden was there soon after the interview, which lasted an hour and a half to two hours, commenced. The state agents questioned defendant and one of them took down on a typewriter what Hofer said. Defendant read over the statement and signed it and it was received in evidence as exhibit 4.

The two investigators, the warden and the employee who sat with defendant on his return to the reformatory testified to the circumstances under which exhibit 4 was given. The writing itself asserts: it was made of Hofer's own free will, no threats or promises were made to him by the state agents to whom the statement was given, Hofer had read the statement, it is true, and signed it 'knowing it may be used against me in court.'

The testimony is that the agents told defendant who they were, that defendant [28 N.W.2d 479] could refuse to make a statement if he saw fit and anything said by him might be used against him in court, Hofer said he was ready and talked freely, no threats or promises were made him. It does not appear defendant was advised of what he now refers to as his 'right to counsel' although one agent says 'I believe we did. However, I wouldn't want to state we did.'

The employee who sat with Hofer on his return to the reformatory testifies he and his two fellow employees talked to defendant during the 50-mile trip. To these men Hofer told about the same story that appears in exhibit 4 but in less detail. Three days after exhibit 4 was made defendant was [238 Iowa 827] again questioned in the same board of parole room by the two state agents. An additional written statement was given by defendant at this time. It contains substantially the same statements as those in exhibit 4 above referred to which purport to show it was voluntarily given and reiterates that exhibit 4 is true and correct.

Both agents testify the later statement was made without any threats or promises to defendant, one of them says Hofer was told 'he didn't have to make a statement if he didn't want to,' and the other testifies defendant was advised of his right to counsel and that the additional statement might be used against him but Hofer did not manifest his desire to have counsel. There is no evidence defendant was tired or worn out on the 17th. This later statement was received in evidence as exhibit 5.

It is the rule in this state that where, as here, a written statement by the accused purports to be freely given it is prima facie voluntary and the burden rests upon him to show the contrary. State v. Bisanti, 233 Iowa 748, 751, 9 N.W.2d 279, 281, and cases cited; State v. Boston, 233 Iowa 1249, 1253, 11 N.W.2d 407, 409. Here no testimony was offered in defendant's behalf and the state's evidence tending to show exhibits 4 and 5 were voluntary is without contradiction. Defendant was clearly not entitled to have the exhibits excluded on the ground they were involuntary as a matter of law. State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959; State v. Townsend, 191 Iowa 362, 366, 182 N.W. 392; State v. Bennett, 143 Iowa 214, 220, 121 N.W. 1021, and cases cited.

That exhibits 4 and 5 were given when defendant was a prisoner does not render them inadmissible. State v. Kelso, 198 Iowa 1046, 200 N.W. 695, and cases cited; State v. Westcott, 130 Iowa 1, 6, 104 N.W. 341; State v. Storms, 113 Iowa 385, 391, 85 N.W. 610, 86 Am.St.Rep. 380; Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct. 895, 40 L.Ed. 1090, 1096; 20 Am.Jur. 431, section 498; 22 C.J.S., Criminal Law, § 819, p. 1439.

It is claimed defendant was fraudulently induced to make exhibits 4 and 5 because, it is said, the officers did not tell him [238 Iowa 828] Hinz was dead nor that defendant might be prosecuted for murder. It does not clearly appear Hofer knew, at least when exhibit 4 was made, Hinz had been killed, although there is evidence he told an...

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