State v. Kerns

• Decision Date: 18 April 1924
• Citation: 198 N.W. 698,50 N.D. 927
• Court: North Dakota Supreme Court

198 N.W. 698

50 N.D. 927

STATE OF NORTH DAKOTA, Respondent, v. HARRY FRANCIS KERNS, Appellant

Supreme Court of North Dakota

April 18, 1924

Appeal from the District Court of Williams County, Lowe, J.

Affirmed.

Frank E. Fisk and Thos. F. Craven, for appellant.

Officers have no right to subject a person to an inquisitorial examination and grill him by methods known as the sweat box. State v. Thomas (Iowa) 188 N.W. 689; People v Thompson, 84 Cal. 598, 24 P. 384; People v Barrick, 49 Cal. 342; People v. Loper, 159 Cal. 6, 112 P. 720, Ann. Cas. 1912B, 1193.

It is error to admit a confession made, while the defendant is under arrest, under the inducement that "the best he could do was to own up" and "it would be better for him." People v. Philips, 42 N.Y. 200.

By "voluntary" is meant proceeding from the spontaneous suggestion of the parties' own mind, free from the influence of any extraneous disturbing cause.

The word "voluntary" as applied to confessions in criminal actions means more than that they were not given under compulsion. People v. McMahon, 15 N.Y. 384.

A remark, "Don't run your soul into more sin, but tell the truth" held to render confession inadmissible. Rig v. Steeman, 6 Cox, C. C. 245.

"Nonexpert opinion as to the existence or exercise of influence by one person over another have, in every case in which they have been offered, been held incompetent." L.R.A.1918A, 662 note, subd. IX.

"It is a general rule in criminal cases which is well established, that the commission of other similar offenses by the defendant cannot be offered in evidence for the purpose of showing that the person charged has a criminal tendency or is of criminal disposition or nature, in order to thus show that there was more likelihood of his having committed the offense with which he is charged. There seems to be an exception to this rule as applied to sexual crimes." State v. Rice, 39 N.D. 605.

On newly discovered evidence, see State v. McKean (S.D.) 190 N.W. 781.

Geo. F. Schafer, Attorney General, John Thorpe, Assistant Attorney General, and F. W. McGuiness, for respondent.

"Littledale, J. well observed that telling a man to be sure to tell the truth, is not advising him to confess anything of which he is really not guilty." Sparf v. United States, 156 U.S. 51, 39 L.Ed. 343.

"But mere advice to tell the truth, where there is neither a threat nor an inducement, is not sufficient to render the confession inadmissible." Heldt v. State, 20 Neb. 496, 30 N.W. 626; Kelly v. State, 72 Ala. 244; State v. Meekins, 41 La.Ann. 543, 6 So. 822; State v. Patterson, 73 Mo. 695.

"The third and last threat relied upon by the defendants as we have seen was that of the officer who was taking him over to the district attorney's office, who merely told him to tell the truth. This was advice merely, not a threat, and could not well be considered as bringing the case within the statute to which we have called attention. Com. v. Preece, 140 Mass. 276, 5 N.E. 494." People v. Randazzio, 87 N.E. 112, 194 N.Y. 147.

That a promise or inducement cannot be implied from an exhortation that it is best or better to tell the truth has been decided in numerous cases, among them the following: Washington v. State, 106 Ala. 58, 17 So. 546; State v. Kornstett, 62 Kan. 221, 61 P. 805; State v. Staley, 14 Minn. 105, Gil. 75; State v. Anderson, 96 Mo. 241, 9 S.W. 636.

The supreme court of the state of Alabama held that although the accused is urged to tell the truth, and the statement is made to him that it will be better for him to do so, does not render the confession involuntary. Hoffman v. State, 130 Ala. 89, 30 So. 394.

"The supreme court of the state of Ohio has held that the bare exhortation by the police captain to the accused that he had better tell the truth would not render a confession involuntary, since this was not an influence calculated to bring forth an untruth." (Italics ours.) State v. Leuth, 5 Ohio C. C. 94.

We would also refer the court to the following decisions on this point: Steele v. State, 83 Ala. 20, 3 So. 547; People v. Kennedy, 159 N.Y. 346, 54 N.E. 51.

"Furthermore, for the purpose of this appeal it must be held that the court found with the state on the conflicting testimony, and it not being clearly against the weight of the testimony, such finding is binding upon us." State v. Allison (S.D.) 124 N.W. 747.

"But the rule is well settled that this court will in no case reverse the decision of a lower court on a question of fact unless it is manifestly against the weight of the evidence. (The same rule obtains in respect to the finding of facts by a court that does to the verdict of a jury; it must be clearly erroneous before it is set aside. . . . Where his statements and those made by Page are at variance, it was for the court below to say which of them was entitled to credence, and its determination of the question on a conflict of evidence, unless manifestly against the weight of the evidence is final." State v. Staley, 14 Minn. 105, Gil. 75.

"Unless there is a positive promise of favor made or sanctioned by a person in authority, or the inducement held out is calculated to make the confession an untrue one, I think it may be laid down as a rule based on reason, and deductible from the late authorities that the confession will be admissible." (Italics ours.) State v. Staley, 14 Minn. 105, Gil. 75.

"So it has often been said the real question in every case is whether or not the confession mind was influenced in a way to create doubt of the truth of the confession." State v. Vey, 114 N.W. 719.

"In cases of this kind, the real question is whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from fear of a threat or hope of profit from the promise." State v. Hopkirk, 84 Mo. 278; United States v. Stone, 8 F. 832; Beckhorn v. State, 100 Ala. 15, 14 So. 859.

"In determining whether a confession is admissible, the only proper question is whether the inducement held out to the prisoner was calculated to make his confession an untrue one." People v. Smith, 3 How. Pr. 226.

"A promise of benefit to render a confession involuntary must be of such a character as to be likely to induce the accused to speak untruthfully." Rice v. State, 22 Tex.App. 654, 3 S.W. 791.

Several courts have laid down the general rule that the chief inquiry is whether the inducement was calculated to make the testimony untrue, of which we cite the following: Katie v. State, 44 Miss. 332; State v. Johnny (Nev.) 87 P. 3; State v. DeHart (Mont.) 99 P. 438; O'Brien v. People, 47 Barb. 274.

"Inasmuch as the theory upon which involuntary confessions are excluded is their possible falsity, if the confession discloses incriminating facts which are shown to be true, the reason of the rule ceases to exist, and so much of the confession as discloses the fact and the fact disclosed is competent." 8 Cal. Jur. § 201.

NUESSLE, J. BRONSON, Ch. J., and BIRDZELL, CHRISTIANSON, and JOHNSON, JJ., concur.

OPINION

NUESSLE, J.

The defendant, Harry Francis Kerns, was convicted in the district court of Williams county upon a charge (under §§ 10,035 and 10,036, Comp. Laws, 1913) of maliciously removing a bolt from a switch on a railroad in Williams county with intent to wreck a train, thereby causing a wreck resulting in the death of two human beings. Thereafter he moved for a new trial, which motion was denied. From the judgment of conviction and from the order denying the motion for a new trial, the defendant now appeals to this court.

As grounds for reversal, appellant urges the insufficiency of the evidence to support the verdict, and assigns error on account of the rulings of the trial court as to the admission or rejection of evidence, on account of other errors of law occurring during the trial, on account of instructions given and excepted to, and on account of the denial of his motion for a new trial based on these various assignments and on a showing of newly discovered evidence. In all, appellant specifies some sixty-eight assignments of error.

Shortly the facts as they appear from the record are as follows: On October, 19th, 1922, the defendant was making hay with his father on a quarter section of land adjoining Todd Siding on the Great Northern Railroad in Williams county. He and his father were living on the land in question at that time. The defendant was then nineteen years of age, had finished the eighth grade, but was somewhat subnormal mentally. On the evening of that day at about half past eight o'clock a Great Northern freight train traveling east was wrecked at Todd. The engineer and the head brakeman riding in the cab of the engine were killed. Examination subsequent to the wreck disclosed that the switch bolt in the rod connecting the rails with the standard of the west switch had been removed and was missing, thus leaving the rails loose. The train consisted of forty-six loaded cars and was drawn by a heavy engine. The engine and thirteen cars were derailed, the engine lying on its right side between two and four hundred feet east of the switch. At the time of the wreck the train was running around thirty miles an hour. The missing switch bolt was a heavy iron bolt with a nut and a cotter key. From the testimony of the section foreman, it appears that the bolt was in place, the nut screwed on, and the cotter key inserted and spread at 3:30 on the afternoon of the wreck. A few days after, the defendant, who was working about the wreck, was taken to Williston, the county seat, by the sheriff of Williams county and some railroad detectives for the purpose of being examined as to his knowledge of the occurrence. He was taken to the jail on Thursday, but not at once...