State v. Johnson, No. 47455.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHAYS
Citation241 Iowa 135,39 N.W.2d 123
Decision Date16 December 1949
Docket NumberNo. 47455.
PartiesSTATE v. JOHNSON.

241 Iowa 135
39 N.W.2d 123

STATE
v.
JOHNSON.

No. 47455.

Supreme Court of Iowa.

Sept. 20, 1949.
Rehearing Denied Dec. 16, 1949.


John Martin Johnson was convicted in the Cass District Court, Harold E. Davidson, J., of breaking and entering a school building, and he appealed.

The Supreme Court, Hays, C. J., reversed the judgment, holding that a confession was improperly retained in record under evidence relative to whether it was voluntary and that an instruction placing burden upon defendant to show confession to be involuntary before jury would be precluded from considering it was prejudicial.

Garfield and Wennerstrum, JJ., dissented.

Defendant appeals from a conviction for breaking and entering the Atlantic, Iowa high school building in violation of Sec. 708.8, Code of 1946, I.C.A.

Reversed and remanded.

Maurice Harding, Provo, Utah, Dalton & Dalton, Atlantic, for appellant.

Robert L. Larson, Attorney General of Iowa, Don Hise, First Assistant Attorney General of Iowa, John E. Budd, County Attorney, Cass County, Atlantic, for appellee.


HAYS, Chief Justice.

Defendant was convicted of breaking and entering the Atlantic, Iowa, High School Building in violation of Section 708.8 Code of 1946, I.C.A., and he appeals.

There is no substantial dispute in the facts except as to the circumstances surrounding the making of an alleged confession. The record shows the following: About 1:30 A.M., Sunday September 26, 1948, police found appellant's car parked near the entrance to the school building. It contained tools, some liquor and an Ohio license plate. While the authorities were preparing to remove the car, appellant came from a direction opposite the school building and claimed ownership thereof. He was taken into custody and placed in jail. During the forenoon of Sunday, he was questioned by the deputy sheriff and the county attorney as to his identification and was told that he would be held until Monday, pending further investigation. About noon, the sheriff's office was notified that the school building had been entered during the night. About 3 P.M. appellant was taken to the sheriff's office and questioned by the deputy sheriff, a highway patrolman and the county attorney until 5 P.M. when the county attorney left. About 5:15 P.M. the appellant

[39 N.W.2d 124]

made an oral statement to the two officers and was returned to jail about 6 P.M. Around 9:30 A.M., Monday the 27th, a clerk in the sheriff's office, and in the presence of the deputy sheriff, took a statement from appellant; typed the same and witnessed the signing thereof by appellant. This statement was given in the jail near appellant's cell. About 11 A.M. he was taken before a Justice of the Peace, where charges were filed and he was then given the right to contact counsel. An indictment was returned October 8th and the trial commenced October 18th, with the result as above stated.

I. Appellant asserts that the trial court erred in admitting into evidence the alleged confession, known in the record as exhibits 4A and 4B, for the reason that the same was obtained by the use of threats and physical violence. The record shows the following proceedings: Upon the Appellee's main case, the deputy sheriff and the patrolman told of the statement made by appellant and stated that it was freely and voluntarily given. They denied upon cross-examination that threats or force were used. The clerk stated that at the time she took the statement, she heard no threats or promises and that she did not observe any bruises upon appellant. When she was asked to identify the exhibits 4A and 4B, objection was made upon the ground that it had been obtained by extortion and coercion. The objection was overruled, the court stating that there was no evidence to that effect. When the clerk was asked to read the same to the jury, it was objected to upon the grounds of irrelevant and incompetent. The same was overruled and the statement read into the record.

Appellant, as a witness in his own behalf, states that he was questioned, as above set forth. He says he was told by all three of his questioners that unless he told the truth and cleared up the matter, he might lose his son. After the county attorney left the office, the two officers immediately commenced beating and abusing him, especially the patrolman. That finally, to avoid further abuse, he told them he would agree to anything that they wanted. That after making the statement, the patrolman told him that there was more to come. That he signed the statement on Monday because of the threats and abuse on Sunday.

Dr. Giegerich, as a defense witness, states that he examined appellant at the jail about noon on Tuesday, the 28th. He found both of his eyes bruised and discolored; his lips cut and bruised and his arms, legs and back bruised and discolored. He estimates they were caused some 24 to 36 hours prior to his seeing him and says that they could not be self-inflicted.

Rev. Dohrman, a Lutheran Minister, states that he called upon appellant at the jail about noon of the 27th and observed a discolored eye and some blood upon the back of his shirt.

Harley Johnson, a photographer, states that he took color pictures of appellant, at the jail, and observed the bruised condition of his eyes, arms, legs and back. The pictures were not available at the time of trial as they had not been returned from New York where they had been sent to be processed.

In rebuttal, appellee recalled the deputy sheriff, who merely stated that he had heard appellant's testimony and that it was not true. No other rebuttal testimony was offered. No motion was made to withdraw the exhibits from the record at this time but in the motion for a directed verdict, the question of the admissibility of the exhibits was presented to the court and overruled, the court stating that there was a direct conflict in the testimony sufficient to make it a question for the jury. Appellee, in its brief and argument, does not question the manner in which this proposition is presented and fully argues the same. We deem the question is properly before us for determination.

Both parties agree that the Iowa Law is well settled on this question and appellee, in argument, states ‘There can be no question but what the sole test of the admissibility of a confession in the State of Iowa is, was it made freely and voluntarily and without compulsion or inducement of any kind’. That this is a correct statement of the Iowa rule, see

[39 N.W.2d 125]

State v. Fidment, 35 Iowa 541;State v. Storms, 113 Iowa 385, 85 N.W. 610,86 Am.St.Rep. 380;State v. Thomas, 193 Iowa 1004, 188 N.W. 689;State v. Hofer, 238 Iowa 820, 28 N.W.2d 475;State v. Webb, Iowa, 31 N.W.2d 337;State v. Compo, 108 N.J.L. 499, 158 A. 541, 85 A.L.R. 866, 870. It is also the established rule in Iowa that the admissibility of a confession is a question for the court to determine, but if a substantial conflict arises in the evidence, the question becomes one for the jury under proper instructions. The rule is well stated in State v. Harding, 204 Iowa 1135, 1145, 216 N.W. 642, 647, as follows, ‘It is settled in this state that, where the free and voluntary character of the statements relied upon as a confession is the subject of dispute or conflict in the evidence, the question may properly be submitted to the jury. * * * If, however, it clearly appears from the record that the alleged confession was not freely and voluntarily made, or if the state, by its own evidence, negatives these essentials to its use in evidence, it is the duty of the court to sustain the objection and refuse its submission to the jury.’ See also State v. Pardoe, 199 Iowa 842, 201 N.W. 75;State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959.

We do not think a substantial conflict or dispute exists in the instant record. It is true that both the deputy sheriff and the patrolman upon the main case deny under cross-examination that they threatened or abused appellant and the clerk states, on cross-examination, that she did not observe bruises on appellant or hear any threats and, as stated in State v. Kress, 204 Iowa 828, 216 N.W. 31, the State was not required to affirmatively refute a matter of this character in its main case; but, after appellant's case was in, including not only his own statement but also those of the physician, the minister and the photographer, the sole rebuttal was the deputy sheriff to the effect that appellant's testimony was not true. So far as the physical violence is concerned, the physical facts overwhelm the mere denial by the officers and clerk. Appellant was in the custody of the State during all of the time in question. It is without dispute in the record that he was in good condition at the time of his arrest on September 26th. It cannot well be denied, under this record, but that somehow, somewhere, sometime and by some one, appellant was, while in the custody of appellee, subjected to personal abuse and violence. In the absence of some showing as to this upon the part of the appellee, other than above stated, the clear weight of the evidence is with the appellant and the confession should have been withdrawn from the record. In this connection see People v. Barbato, 254 N.Y. 170, 272 N.E. 458.

Further, upon the question of the alleged threats by the county attorney to the effect that appellant might lose his son, there is no conflict or dispute in the record as it is virtually conceded by the county attorney in his cross-examination of appellant, as follows:

‘Q. I believe you testified on direct examination I made some statement about your losing your son, * * *? A. Yes Sir. * * *

‘Q. Well what did I say? A. Well, we would have to tell the truth, I would have to tell the truth and get this cleared up for I might lose my boy.

‘Q. Have you lost the boy? A. Well, I understood that he is in the custody of my attorney. * * *.

‘Q. Do you remember we had a juvenile hearing recently? A. Yes, I do. * * *

‘Q. So anything...

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6 practice notes
  • State v. Case, No. 48713
    • United States
    • United States State Supreme Court of Iowa
    • May 9, 1956
    ...than we find here of the involuntary nature of Page 237 the confession in State v. Thomas, 193 Iowa 1004, 188 N.W. 689; State v. Johnson, 241 Iowa 135, 39 N.W.2d 123, and State v. Archer, 244 Iowa 1045, 1049, 58 N.W.2d 44, 46, cited by defendant. The Johnson and Archer decisions are briefly......
  • State v. Mullin, No. 49209
    • United States
    • United States State Supreme Court of Iowa
    • October 15, 1957
    ...N.W. 642, 647; State v. Pardoe, 199 Iowa 842, 201 N.W. 75; State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959; State v. Johnson, 241 Iowa 135, 39 N.W.2d IV. While the statements of Officer Scarpino were perhaps not intended to amount to a promise of a specific benefit, it is perfect......
  • State v. Williams, No. 48324
    • United States
    • United States State Supreme Court of Iowa
    • February 9, 1954
    ...238 Iowa 820, 28 N.W.2d 475; State v. Johnson, 210 Iowa 167, 170, 171, 230 N.W. 513, and citations. Defendant cites State v. Johnson, 241 Iowa 135, 39 N.W.2d 123, and State v. Archer, 244 Iowa ----, 58 N.W.2d 44, 46. Neither case is here factually in point. The Johnson decision was based up......
  • State v. Beckwith, No. 47669
    • United States
    • United States State Supreme Court of Iowa
    • February 6, 1951
    ...and with full knowledge of its contents.' (Italics supplies.) [242 Iowa 240] This follows the rule laid down in State v. Johnson, Iowa, 39 N.W.2d 123. Here it was held by a divided court that the burden is upon the state to show that an offered confession is The trial court then followed wi......
  • Request a trial to view additional results
6 cases
  • State v. Case, No. 48713
    • United States
    • United States State Supreme Court of Iowa
    • May 9, 1956
    ...than we find here of the involuntary nature of Page 237 the confession in State v. Thomas, 193 Iowa 1004, 188 N.W. 689; State v. Johnson, 241 Iowa 135, 39 N.W.2d 123, and State v. Archer, 244 Iowa 1045, 1049, 58 N.W.2d 44, 46, cited by defendant. The Johnson and Archer decisions are briefly......
  • State v. Mullin, No. 49209
    • United States
    • United States State Supreme Court of Iowa
    • October 15, 1957
    ...N.W. 642, 647; State v. Pardoe, 199 Iowa 842, 201 N.W. 75; State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959; State v. Johnson, 241 Iowa 135, 39 N.W.2d IV. While the statements of Officer Scarpino were perhaps not intended to amount to a promise of a specific benefit, it is perfect......
  • State v. Williams, No. 48324
    • United States
    • United States State Supreme Court of Iowa
    • February 9, 1954
    ...238 Iowa 820, 28 N.W.2d 475; State v. Johnson, 210 Iowa 167, 170, 171, 230 N.W. 513, and citations. Defendant cites State v. Johnson, 241 Iowa 135, 39 N.W.2d 123, and State v. Archer, 244 Iowa ----, 58 N.W.2d 44, 46. Neither case is here factually in point. The Johnson decision was based up......
  • State v. Beckwith, No. 47669
    • United States
    • United States State Supreme Court of Iowa
    • February 6, 1951
    ...and with full knowledge of its contents.' (Italics supplies.) [242 Iowa 240] This follows the rule laid down in State v. Johnson, Iowa, 39 N.W.2d 123. Here it was held by a divided court that the burden is upon the state to show that an offered confession is The trial court then followed wi......
  • Request a trial to view additional results

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