State v. Johnson

• Decision Date: 26 October 1938
• Docket Number: 5964
• Court: Utah Supreme Court
• Parties: STATE v. JOHNSON

83 P.2d 1010

95 Utah 572

STATE v. JOHNSON

No. 5964

Supreme Court of Utah

October 26, 1938

Appeal from District Court, Millard County, Fifth District; Will L Hoyt, Judge.

Fern Johnson was convicted of murder in the second degree, and she appeals.

REVERSED AND REMANDED, with directions.

J. A Melville and O. A. Tangren, both of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

LARSON Justice. HANSON and MOFFAT, JJ., concur. WOLFE, Justice, FOLLAND, Chief Justice, dissenting.

OPINION

LARSON, Justice.

Defendant was convicted in the District Court of Millard County of the crime of murder in the second degree, and appeals. The facts pertinent to the appeal are as follows: Appellant on the night of February 1, 1937, gave birth to a baby boy. She testified that she was unattended, although her mother slept in the same room and her brother in an adjoining room. It was sub-zero weather; there had been no fire in the house since morning except for a few minutes to prepare the evening meal. It was a frame house; the room was uncarpeted and there were cracks under and about the door. The baby came about 10:30 or 11:00 o'clock at night. She had not told her mother of her condition and did not call her mother when she became ill. The baby "just cried a little; that she was in great pain and swooned; she was unconscious for an hour or more. When she regained consciousness she felt for the baby. It lay in the bed just where it was born in all the vernix, caseosa, and with part of the placenta attached. She put her hand over its mouth to see if it was breathing and then put her hand over its heart but could feel no beat. She left the baby under covers until the next evening when she carried it in a pasteboard box to a public toilet in the park and there deposited it." The above facts, as testified to by appellant, are not essentially in dispute. There is no doubt that she gave birth to the baby and that the baby when dead was by her thrown into the toilet. To maintain its case the state relies on alleged confessions of the appellant. She contends that the alleged confessions were not such; that if given, they were involuntary and therefore inadmissible; and that at no time was there or is there any proof of the corpus delicti independent of the confessions. Here are presented the three questions involved in this appeal. Were they confessions? Were they voluntary? Was there independent proof of the corpus delicti?

Evidence of alleged confessions was furnished by Dr. Wright and by Messrs. Turner and Peterson. Dr. Wright testified that on February 4th defendant came to him for an examination. She said that the sheriff had found a baby in Deseret and she had been accused of being its mother and she wanted to prove that she had been menstruating regularly and was then doing so. The doctor testified he examined her and told her his examination showed she had recently given birth to a baby. Dr. Wright was the County Physician. He had already heard of finding the body of a baby in the toilet. He confronted her with the fact that such was her baby. She first denied having a baby and finally admitted that the baby found was hers. He testified further as follows:

"I said: What happened to it, Fern, what caused its death?' Did you do something to cause the baby's death?' She said: Yes, I did.' I said: What was that?' She said: I put my hand over the baby's mouth and nose and excluded the air and caused the baby's death in this manner.'

"Q. Did she say why she had done it? A. Yes sir.

"Q. Why did she say? A. Well, she said that she couldn't go through with any more, she had all the children she could take care of, she had more than she could do justice to, she couldn't raise any more children. Further, she said she didn't want her mother to know anything about it. She said that those were practically the reasons why she had done as she had."

On cross-examination he testified she did not say she had put her hand over the baby's nose, but that in illustrating she put her hand over her own mouth and nose, which gave him that impression.

The statements testified to as having been made to Dr. Wright if given the interpretation placed upon them by him were confessions. They involved an admission of guilt of the criminal act. They were admissions of the whole crime and not merely of some part thereof which, together with independent facts, would tend to prove the guilt.

A confession admits the commission of a crime, that is, admits all the elements of the crime including guilty participation. An admission on the other hand admits only some part or elements of the crime, but not the guilt, and leaves the rest including guilty participation to be proved by other evidence.

Were such confessions voluntary? Appellant testified that the doctor told her that if she didn't tell the truth about it she would "be brought into court and cross-examined." This the doctor denied. As to whether this amounted to a threat which put her in fear or a promise by implication that if she admitted the crime she would escape something which she dreaded, so as to obstruct the voluntary and free action of her mind and will, was for the determination of the trial court or the jury under proper instructions. In determining whether a confession was voluntary there must be taken into consideration the age and intelligence of the witness, the place and conditions under which the statement was made, the circumstances that invoked the conversation, as well as the nature, content, and import of the statement itself. The court held the statement voluntary and we find no error therein.

The next statement of defendant to Dr. Wright alleged to be a confession was made on February 25th in connection with his obtaining a death certificate. The testimony of Dr. Wright in that regard is as follows:

"Q. Tell just what she told you at that time with reference to the cause of the death of this infant. A. She said that the baby was born there at her home in Deseret on the night of February 1 at about 10:00 or 10:30 P. M., she was not sure of the exact time. She said after the baby was born she put her hand over the baby's mouth to exclude the air, suffocate it. When she was sure that the baby was dead she pushed it down under the bed clothes and covered the baby up.

"Q. Did she tell you at that time what disposition was made of the body of the baby? A. Yes, she said the baby later was taken out to this toilet in the park."

The defendant denied she had told the doctor on either occasion that she had killed the baby.

There is testimony of her having told Turner, the deputy sheriff, that she killed the baby. Her alleged admissions came after considerable importuning and with intermittent spells of crying and partial hysteria. She was upset. Finally after a number of denials he says she nodded her head, "yes," in answer to his question as to whether she killed the baby. No useful purpose would be subserved by setting out in detail the testimony in that regard. It is for the trial judge to determine whether confessions were voluntary. If he concludes that they were, and there is conflicting evidence, he should submit the issue as to whether they were voluntary to the jury, instructing them that they should first determine that question before they consider the confessions as evidence against the accused and only consider them as evidence if they conclude that the confessions were voluntary. If the judge determines that they were not voluntary they of course should not be admitted. Likewise, if he concludes they were voluntary, and there is no evidence that they were not voluntary or the circumstances such as not to raise any doubt as to their voluntariness, he should not put the issue to the jury. State v. Bates, 25 Utah 1, 69 P. 70; State v. Johnson, 76 Utah 84, 287 P. 909; State v. Wells, 35 Utah 400, 100 P. 681, 136 Am. St. Rep. 1059, 19 Ann. Cas. 631; State v. Dunkley, 85 Utah 546, 39 P.2d 1097. State v. Romeo, 42 Utah 46, 128 P. 530.

As stated by Mr. Justice Wolfe:

"A confession is involuntary where the installation of fear or a promise of benefit, related to the legal consequences as regards accused, conveyed by another for the purpose of obtaining the confession, has so acted on the will of the confessor as to fetter the freedom of choice on the matter of whether he or she should confess. The actuating element which must move the will of the accused to confess is an inherent freedom of choice not influenced by fear or hope induced by another for the purpose of obtaining the confession. Whether such freedom of choice has been so interfered with by the conduct of another is a question of fact to be determined from the evidence."

We think the trial court is in a better position to determine whether advantage was taken of a defendant to obtain a confession in a way not countenanced by the law. And we do not think the court erred in holding that the confessions were not involuntary and admitting them in evidence.

We come now to the crucial question: Is there sufficient independent proof of the corpus delicti to render the confessions admissible in evidence? It is clear to our minds that there is not such independent evidence. We concede at the outset that such independent evidence need not conclusively show the corpus delicti. We also concede that in deliberating on a verdict the jury may consider the confessions in evidence not only in determining the question of defendant's guilty participation in the crime but also in determining if the crime was actually committed. In other words, when a cause reaches the jury it bases its verdict upon a consideration of all the evidence before it and may consider any...