State v. Webb

• Citation: 31 N.W.2d 337,239 Iowa 693
• Decision Date: 09 March 1948
• Docket Number: 47143.
• Parties: STATE v. WEBB.
• Court: United States State Supreme Court of Iowa

31 N.W.2d 337

239 Iowa 693

STATE v. WEBB.

No. 47143.

Supreme Court of Iowa

March 9, 1948

Rehearing Denied May 7, 1948.

W N. Williams and Paul B. Holleran, both of Clinton, for appellant.

Robert L. Larson, Atty. Gen., Don Hise, Asst.Atty.Gen., and Carroll Johnson, County Atty., of Clinton, for appellee.

SMITH Justice.

The indictment, in usual form, charged that defendant on or about October 27, 1946, 'willfully and maliciously set fire to a building known as the Clinton Superior Laundry, in violation of section 707.2 of the 1946 Code of Iowa.'

Defendant (aged 39) and one Blandford were equal partners in ownership and operation of the laundry in a leased building in Clinton. Both partners and Mrs. Webb were in the place of business the evening of Sunday, October 27, 1946. There was some discussion over an alleged discrepancy in the books kept by defendant and his wife. Blandford testifies there was a cash shortage of the amount of a check 'in the vicinity of $50.' Defendant testifies the check was for $37.50 and that 'it wasn't down in the sheet. I explained it to him and he was satisfied.'

The evidence shows the partnership was 'hard up' and having some financial difficulties, that Blandford was demanding an audit of the books and that defendant finally consented,--at least that an auditor be called in to determine what would be the cost of such audit.

Defendant and wife remained at the laundry that Sunday evening after Blandford left. Defendant says they left sometime after 10 o'clock and reached home between 10 and 11 o'clock that he went to bed and slept until wakened by his wife at the telephone who exclaimed: 'Oh my God! The laundry is on fire!' He thinks this was about 1:30 a. m. The chief of police says the telephone to Mrs. Webb was at 1:25 a. m. The fire alarm was turned in about 12:45.

In view of our disposition of the appeal we do not detail the testimony of all the various witnesses or all the various exhibits offered in evidence. We are concerned principally with the State's Exhibit 8, a writing signed by defendant and the evidence bearing on its execution. The exhibit is as follows:

'November 8, 1946.

My name is John William Webb. I live at 319 15th Ave. S., Clinton, Iowa. This statement is made of my own free will and accord, without threat or promise being made to me and after being advised that anything I say here will be used against me.

On the night of Oct. 27th my wife and I were in the Clinton Superior Laundry checking over the books. My partner was there also. He left and my wife and I stayed there until about 10 P.M. We went home. I then left home and returned to the laundry alone. I drove the company truck, it is a red panel truck. I don't remember where I parked the truck. I entered the building as usual from the front door. I don't know what time it was. I had a couple of drinks, but I was not drunk, I didn't have very much to drink. I gathered up papers from around the place. I got a empty paper milk bottle and filled it with gasoline which was stored in a five gallon can back of the laundry. I didn't take the can of gas with me. I filled the milk bottle full. I took a ladder that was in the back of the laundry and put it up to a trap door in the ceiling in the front of the laundry. There was a cover over the trap door. I removed the cover and went up into the attic. I put the papers in the front part of the building over the office. I set fire to the papers and not to the gasoline which I had put in the bottle. The bottle was near the papers. I used a match to light the fire. I didn't wait to see if it got a good start, but it was burning when I left. I put the ladder back where I got it. I left by the front door. The door has a night lock on it. The door locks when it is closed. When I got home I went to bed right away. My wife was still up when I got home. We both went to bed. My wife called me when the police called to say that our place was on fire. I set the fire so that we would get a loan and get the bills caught up. We were having trouble making all our payments in the place. My partner had nothing to do with this. I did it by myself.

John W. Webb

The above statement is true.

Witness: H. W. Thomson, Chief of Police

Zack T. Cook.'

The exhibit is typewritten except the various signatures and the words, 'The above statement is true,' which words are admittedly in defendant's own handwriting.

1. Defendant assigns error on the refusal of the trial court to withdraw this exhibit from the consideration of the jury as having been obtained by threats and promises made by the county attorney. The evidence would not have justified such exclusion by the court.

The negotiations leading to its execution were between defendant on the one hand, and the county attorney and a criminologist from Chicago on the other, and neither of the latter testifies. Defendant testifies that on the day the statement was signed he voluntarily submitted to a lie detector test. The man from Chicago operated the machine. He and defendant were in a little room off the county attorney's office. The county attorney, state fire marshal, chief of police, and perhaps others, were in the adjoining room and the rooms were connected by an inter-communicating loud speaker system to enable those in the main room to hear what transpired in the little room.

Defendant was first interviewed by the Chicago man alone for a time and says he steadfastly denied having set the fire though constantly accused by the expert of not telling the truth. The result of the lie detector tests is not shown. Finally defendant asked the expert to send in the county attorney.

No one else was present at the interview between defendant and the county attorney that followed. Defendant testifies he told the county attorney: 'I think this thing has went far enough; now let's get down to business; * * * you either put me under arrest or I am going to get out of here. I am satisfied that I can't satisfy you fellows without telling you I did it and I am not going to do that * * *.' He says the county attorney told him he had definite proof defendant set the fire to which he (defendant) responded: 'Well, if you have * * * why don't you just place me under arrest.' There was further questioning in which defendant maintained his innocence.

Finally, according to defendant, the county attorney said: 'How do you know your wife didn't set that fire?' * * * 'She could have got the boy to help her, couldn't she?' * * * 'If you didn't do it, your wife and son did.' Defendant says the county attorney threatened to prosecute the wife for it with the boy as an accomplice. Then: 'I told him I would make a deal with him if he would promise to leave my wife and family alone, I would sign anything.' They then went into the other room where the statement was prepared and signed. Defendant says he added the words in his own handwriting at the county attorney's request.

The Assistant Fire Marshal testifies he was present in the outer room throughout the entire session and in a position to hear all that was said. He says defendant arrived between 4 and 4:45 p. m.; that defendant was in the little room with the Chicago expert until about 5:30 when the latter came out and sent the county attorney in; and about 30 minutes later both defendant and the county attorney came out, after which the statement was prepared and signed. The witness says he heard no threats or promises made to defendant to induce the signing of the statement.

The Chief of Police gave similar testimony though he admits he was not present the entire time. Another witness, officer Clancy, who was present testifies he heard everything the county attorney said and that he heard no coercion, threats or promises of any kind. He also testifies to conversations he had with defendant later the same day which would be quite inconsistent with defendant's contention as to why he signed the statement: 'He told me he felt better after making this statement.' 'I asked him if he really did go home after setting this fire and go to bed and go to sleep and he said he did, he slept sound.' He made no protestations of innocence and talked freely. It may of course be argued defendant was still, at the time of these conversations, under the influence of the alleged threat to implicate his wife and son unless he confessed. However, it was for the jury to determine under proper instruction, whether the statements were free and voluntary. State v. Storms, 113 Iowa 385, 85 N.W. 610, 86 Am.St.Rep. 380; State v. Hofer, Iowa 28 N.W.2d 475, 480. Where the confession appears to have been free and voluntary, the burden is on defendant to show otherwise. State v. Icenbice, 126 Iowa 16, 101 N.W. 273; State v. Plude, 230 Iowa 1, 6, 296 N.W. 732.

II. But defendant on appeal argues that the instruction given was inadequate and that the court erred in refusing to give a requested instruction to the effect that the statement was not to be considered unless found to have been 'made freely and voluntarily and not procured by undue influence in the way of promise or advantage, however slight, to the defendant, if the confession was made; or threat of any harm to follow if the confession was not made * * *.'

We have examined the instruction actually given and find it sufficient. The jury was in effect told that 'before a confession can be given any weight or consideration by you, you must find that it was freely and voluntarily made, without the influence of fear or promise of favor or reward.'

There was elaboration beyond the parts quoted above in both the requested instruction and the one given. There was no material difference however between them. The contention here made cannot be sustained.

III. Error is assigned...