State v. Schabert

• Decision Date: 05 July 1946
• Docket Number: No. 34224.,34224.
• Citation: 24 N.W.2d 846,222 Minn. 261
• Parties: STATE v. SCHABERT.
• Court: Minnesota Supreme Court

24 N.W.2d 846

222 Minn. 261

STATE v. SCHABERT.

No. 34224.

Supreme Court of Minnesota.

July 5, 1946.

Appeal from District Court, Dakota County; Alfred P. Stolberg, Judge.

Regina Schabert was convicted of second-degree murder, and she appeals.

Affirmed.

Arthur E. Arntson, of Red Wing, and L. J. Kilbride, of Hastings, for appellant.

J. A. A. Burnquist, Atty. Gen., Ralph A. Stone, Asst. Atty. Gen., and David L. Grannis, Jr., County Atty., and Vance B. Grannis, Asst. County Atty., both of South St. Paul, for respondent.

MATSON, Justice.

Defendant, convicted of murder in the second degree, appeals from an order denying her motion for a new trial. This is defendant's second appeal. Our former opinion, reported in State v. Schabert, 218 Minn. 1, 15 N.W.2d 585, was based on a record limited to defendant's testimony, certain exhibits, the county attorney's argument, and the court's charge.

Regina Schabert was arrested about 4 o'clock in the morning of March 5, 1942, and lodged in the Dakota county jail at Hastings upon the suspicion of having killed her husband, Frank Schabert. In addition to, and as a qualification of, the necessarily restricted statement of facts given in our former opinion, we now have the benefit of evidence presented by both the state and defendant. Between the time of her arrest on March 5 and her arraignment on March 7, two different confessions were made by defendant, namely, an oral statement made on March 5 (alleged by defendant to have been reduced to writing and later signed by her) to the effect that in attempting to wrest the gun from her husband in a scuffle he was accidentally shot, and a second confession made on March 6, reduced to writing and signed by defendant, wherein she admitted having shot her husband while he was asleep on the bed. The first confession was substantially in conformity with her testimony on the witness stand. Defendant's assignment of errors raised questions (1) as to the admissibility of the second confession and the oral testimony thereto pertaining; (2) whether the trial court erred in refusing to instruct the jury that if it found defendant to be of the actual or proved mental age of eight years and ten months (as distinguished from her physical or chronological age of 28 years) then she is presumed to be incapable of committing a crime; and (3) that the state had failed to adduce evidence showing the commission of a public offense as determined by the jury's verdict.

1. In State v. Prickett, 221 Minn. 179, 182, 21 N.W.2d 474, 475, we held "* * * Where a question of law is decided on appeal, it becomes the law of the case, which the trial court is bound to follow on a new trial and the appellate court will not re-examine on a subsequent appeal. * * * The rule is not limited to any particular kind of legal questions." See Nees v. Minneapolis St. Ry. Co., 221 Minn. 396, 22 N.W.2d 164; Goldman v. Christy, 165 Minn. 237, 206 N.W. 392; 1 Dunnell, Dig. & Supp. § 398.

Defendant challenges the admissibility of the second confession on the ground that it was obtained through psychological pressure upon her while she was detained incommunicado. No claim is made that she was tortured physically except that it is alleged that she was kept awake by persistent questioning and felt sick and tired when she finally signed the document. We inquire whether defendant was in possession of her mental freedom to confess to, or deny, an alleged or suspected participation in the crime. Was the confession obtained by means of such pressure exerted upon accused as to affect its testimonial trustworthiness? Reduced to a common denominator: Was the confession in fact voluntary?

In conformity with our former opinion, the trial court, out of the presence of the jury, heard the pertinent evidence of both parties to determine whether such evidence presented a question of fact as to the voluntary nature of the confession. After having so determined that a question of fact was involved, the court admitted the second confession in evidence for the jury's consideration and placed before it the entire evidence as to both confessions. The jury was instructed to determine whether either or both confessions were defendant's free and voluntary act or acts, and was further told that, if found not to be voluntary as the act or acts of defendant's free will, they were not admissible as evidence and must be disregarded. The court further charged that, if voluntary, the confessions were to be given weight only to such an extent as the jury should deem them worthy of consideration. The charge specified that the jury, in determining whether the confession or confessions were voluntary, should take into consideration (1) the fact that defendant was not arraigned before the court until March 7; (2) her mentality; (3) the manner in which she was questioned; (4) the opportunity or want of opportunity she enjoyed to confer with her parents, brothers, attorney, and her priest; (5) whether or not she was denied the right to consult an attorney of her own choice privately; and (6) that consideration should be given to all the circumstances under which the confession had been obtained or made. Clearly, the instructions of the court were in conformity with our former opinion and left to the jury the determination of the voluntary nature of defendant's confession or confessions and the weight and credibility to be attached thereto if found to be voluntary.

The confession, the admissibility of which is challenged, was properly admitted in evidence. Although the evidence was in conflict, there was ample evidence to sustain a finding that the confession was in fact voluntary. There was evidence from which the jury could find that accused had the opportunity to confer, and did confer, with her parents and her two brothers sometime between 5:30 and 7 o'clock on the morning of March 5. There was direct testimony to this effect by the jailer and the wife of the sheriff. The jail register for visitors, which contained the signatures of defendant's father and mother (signed for both by the father) and her two brothers, showed the time of their visit to be at 5:20 o'clock on the morning of March 5. It is true that the date and time of the call are denied by her parents and her brother Sylvester, but after all it was for the jury to determine the actual facts under the conflicting evidence presented. Furthermore, the records of the telephone company indicated that the parents were notified of the tragedy by a telephone call made at 4:40 a.m. on March 5. Defendant's parents and her brothers, who resided on a farm approximately ten miles from Hastings, admitted that they left the farm and drove to town as quickly as they could after receiving the telephone call.

Police Officer Yanz testified that on his way home from night duty, at about 9 a.m. on March 5, he voluntarily called on Father Demetrius, defendant's priest, and told him of the tragedy and suggested that defendant might wish to see him. Father Demetrius, who remembered this call, was not sure of the date, but it was his opinion that it was on the day of the accident. Deputy Sheriff Schneider declared that, in response...