State v. Neubauer

• Decision Date: 11 January 1910
• Citation: 124 N.W. 312,145 Iowa 337
• Parties: STATE v. NEUBAUER.
• Court: Iowa Supreme Court

145 Iowa 337

124 N.W. 312

STATE

v.NEUBAUER.

Supreme Court of Iowa.

Jan. 11, 1910.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Defendant was indicted for willfully, unlawfully, and feloniously committing lewd, immoral, and lascivious acts upon the body and private parts of a male child under the age of 13 years, to wit, of the age of 11 years, with intent of arousing his own passions and those of said male child, contrary to the provisions of the statute. Code Supp. 1907, § 4938a. From a conviction under said charge, the defendant appeals. Affirmed.J. H. Crosby, B. L. Wick, and Lewis Heins, for appellant.

H. W. Byers, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.

McCLAIN, J.

The direct evidence of the commission of the act charged was furnished by the testimony of the boy, then 12 years of age, upon whom the offense was charged to have been committed, and certain statements made by defendant to the chief of police and city detective who held the defendant under arrest. There is practically no conflict in the evidence, defendant not having testified as a witness, and the conviction must be sustained, unless some error of law prejudicial to the defendant was committed in rulings on the introduction of evidence or in the instructions to the jury.

1. The statements made by the defendant soon after he was arrested and in the presence of the officers holding him under arrest amounted to a direct and positive confession of guilt. As there was no suggestion in the evidence that any influence was exercised by the officers upon the defendant to induce him to make a statement, the confession was properly received. State v. Storms, 113 Iowa, 385, 85 N. W. 610, 86 Am. St. Rep. 380;State v. Peterson, 110 Iowa, 647, 82 N. W. 329;Rufer v. State, 25 Ohio St. 464. It appears that on being brought before the officers under arrest defendant said he had no attorney and wanted one, and that no attorney was present representing him when his confession was made. But as there is nothing in the record to indicate that the officers held out any inducement to defendant to make a statement, or employed any compulsion or artifice in securing it, we cannot see how the absence of an attorney representing the defendant, when he voluntarily proceeded to make a confession of his own guilt, can be regarded as affecting its admissibility.

2. It is contended that the court excluded evidence which, if admitted, would have tended to show that at the time of making his confession defendant was not in his right mind, but we find no support in the record for such contention. The detective testified that, at the time the statement was made, he observed defendant's condition and appearance, and that he appeared “about the same as he does at the present time.” The chief of police, as a witness for the prosecution, having testified as to defendant's statements in his presence, said on cross–examination that he observed defendant's condition at the time, and that “he did not appear extraordinarily nervous and excitable, no more than usual in an examination of that kind.” He was then further asked whether he had not told the brother of defendant that he thought defendant was insane, and that an information should be filed to secure an investigation of that question by the commissioners of insanity. An objection to the questionwas sustained. But the belief of the witness, without any showing of facts on which it was based, would be wholly immaterial.

3. Being called as a witness for defendant, the chief of police was asked whether he observed the talk, demeanor, and condition of defendant while in his presence under arrest. Prior to this time counsel for defendant had stated to the court that they would rely upon the record of the commissioners of insanity, which they would subsequently offer and introduce for the purpose of showing the mental condition of the defendant as found by that commission, and that the court therefore had no jurisdiction. The court thereupon sustained an objection to the question put to the chief of police as calling for incompetent, irrelevant, and immaterial testimony in view of the statement and concession of counsel. The question asked of witness was properly interpreted by the court as relating to defendant's mental condition as bearing upon his guilt or the jurisdiction of the court to try him, and not as having any reference to the competency of his confession, and counsel for defendant made no statement as to what was proposed to be proven by the witness, so that he plainly acquiesced in the court's assumption. Counsel for defendant did not state what they proposed to prove by the witness that would have a bearing on the question of sanity at the time of the alleged commission of the crime, nor did they offer to show that defendant was not in such mental condition at the time of trial that he should not be tried. If counsel had offered any evidence tending to show, or had made any claim for defendant, that he was not of sound mind when put on trial, the court could, and no doubt would, under the provisions of Code, § 5540, have investigated that question; but we find nothing in the record which would have justified the court in suspending the ordinary procedure of the trial for the purpose of making an investigation as to defendant's mental condition at that time.

There was an offer in evidence for defendant of what is called the “Insane Record” of the county “with reference to the filing of information in the matter of Jesse F. Neubauer, who is the defendant in this case.” The record thus offered purported to show that on October 22, 1908, which was a date subsequent to the commission of the alleged crime and prior to the indictment of defendant, an information of insanity, sworn to by W. A. Neubauer, was filed in the clerk's office, representing “that one Jesse F. Neubauer, now in said county, is insane and a fit subject for custody and treatment in the hospital for the insane,” and that afterward, on a date in October not given, the commissioners of insanity on examination, and after the hearing of witnesses, found that “said Jesse F. Neubauer is insane and is a fit subject for custody and treatment in the insane hospital,” and it was ordered that he be committed to the hospital at Independence. A warrant of admission to the hospital at Independence for Jesse F. Neubauer was issued on the 23d of that month. But it further...