State v. Wescott

• Decision Date: 11 July 1905
• Citation: 104 N.W. 341,130 Iowa 1
• Parties: STATE OF IOWA, Appellee, v. MARTIN WESTCOTT, Appellant
• Court: Iowa Supreme Court

104 N.W. 341

130 Iowa 1

STATE OF IOWA, Appellee, v. MARTIN WESTCOTT, Appellant

Supreme Court of Iowa, Des Moines

July 11, 1905

REHEARING DENIED FEBRUARY 21, 1906.

Appeal from Cerro Gordo District Court.--HON. CLIFFORD P. SMITH Judge.

DEFENDANT was indicted for the crime of murder. Upon trial to a jury he was convicted of manslaughter, and from the judgment imposed on the verdict he appeals.-- Affirmed.

Affirmed.

Blythe Markley & Rule and W. E. Lamb, for appellant.

Charles W. Mullan, Attorney General, and Lawrence De Graff, Assistant Attorney General, for the State.

OPINION

DEEMER, J.

The state claims that the defendant struck and threw or pushed one George Logue, a barber, through a window of his shop in the second story of a building in the town of Hanlanton, resulting eventually in the death of him, the said Logue. Aside from a confession said to have been made by the defendant, wherein he stated, among other things, that he had trouble with Logue; that Logue was beating him with a chair, and that he struck Logue with his fist or with a quart whisky bottle, and knocked him out through a window--the evidence is wholly circumstantial, and in and of itself insufficient to justify a conviction.

It is claimed that this confession was not admissible in evidence, because abstracted from defendant through fear, promises, and inducements held out to him to secure him to make it. Further, it is argued that the corpus delicti was not sufficiently established; and error is assigned on some of the instructions given by the trial court, and upon its refusal to give certain of those asked by the defendant.

The question most extensively argued is the inadmissibility of the alleged confession. This matter was finally submitted to the jury upon the testimony adduced regarding the character thereof. If the matter was properly submitted to the jury, no fault is found with the instructions relating thereto. That it is proper to submit the question of the character of a confession to a jury when there is a conflict in the evidence and the court is left in doubt on the issue, is the rule in this state. State v. Storms, 113 Iowa 385, 85 N.W. 610. That case treats the subject of confessions quite fully, and we shall have occasion to refer to it again. Should we find that the court was justified in admitting the confession upon the preliminary showing made to it, then, of course, no prejudice resulted to the defendant from the submission of the matter to the jury. We shall first take up this confession.

Logue died on the afternoon of December 12, 1903. The coroner of the county was notified, and he at once came to Hanlanton, impaneled a jury, subpoenaed witnesses, and proceeded with his inquisition. Defendant was seen in company with the deceased during the day he received his injuries, and he was summoned, with other witnesses, and placed upon the stand. His testimony was very contradictory and unsatisfactory, and he acted, as the coroner said, "as if the whole matter were a huge joke." There is some conflict in the testimony as to what was said and done that evening, but all agree that at the conclusion of Westcott's examination the coroner told the sheriff, who was there present, to "take this witness, and have him back here in the morning at 8:30 o'clock." The sheriff then went with the defendant to a hotel, and after partaking of a lunch together the sheriff handed his revolver and knife to a deputy sheriff in defendant's presence, and he and the defendant retired to a room engaged by the sheriff to pass the night.

While preparing for bed, the sheriff said to the defendant, among other things: "How foolish of you. You remember everything else, but when it comes to the circumstances of the murder your mind is a blank. Why don't you explain everything? Now, as a friend of yours, I want to know. You can tell me. I cannot see how you could kill poor Logue." To this the defendant answered: "I must have had it in for him. You see he interfered with me when I tried to lick Martin Lewis." The sheriff then went on further, and stated: "Martin, tell me all about it. Supposing three or four men would say they saw you do it. What would you say to that? Clear your mind, and let the world know that you are not a man to do anything like that and then deny it." The sheriff also testified as follows: "Defendant by this time had got over in bed. I think I made some remark whether he would care if I put handcuffs on him. Defendant said something like that was all right. I put one handcuff on him and one on myself, and I rolled over in bed and went to sleep."

Upon awakening the next morning, the sheriff, while still in bed with defendant, removed the handcuffs, and after they had walked around town for a while the defendant finally said, "I have thought over that matter seven thousand times, and I believe I will make a clean breast of the whole thing." This was the first time the matter had been mentioned since the defendant and the sheriff retired the night before. The sheriff answered, saying, "That's right; tell the whole truth, and I will respect you." Defendant then said, "What about the story I gave them last night?" (referring to his testimony before the coroner's jury), and the sheriff said: "What's the difference? Probably you were excited. Probably you remember some things better this morning. If so, tell them so."

They then proceeded to the barber shop, where the inquest was being held, and defendant remarked on the way there: "What about the blind pig? Shall I tell about the blind pig?" To which the sheriff replied, "Yes." Arriving at the room where the inquest was being held, the sheriff told the coroner and the county attorney, who were present, quoting from appellant's brief: "That defendant wished to see them alone. And after the coroner and county attorney had stepped into a room the sheriff stated that Martin, the defendant, was going to tell all about it, and after stating that the coroner excluded all persons from the room except the county attorney, the sheriff, and members of the jury, and they then proceeded to the taking of Westcott's statement." Before starting, the county attorney told Westcott that he need not incriminate himself, but did not then say to him that he could refuse to answer and that his silence would not be used as evidence against him. After making this statement, the county attorney proceeded to ask questions of the defendant, and during the course of the examination, when the defendant would hesitate, the sheriff would say to him, "Martin, tell the truth," or "Tell the truth, Martin." This the sheriff did a number of times when the defendant seemed to hesitate. After the close of the examination, which was written down by the coroner, Westcott was asked to sign the statement, and after hesitating for a time--one of the witnesses saying that he seemed to be compelling himself to sign--finally did so.

The sheriff admits that in making the remarks he did to the defendant he was endeavoring to get him to confess; but there is no testimony that the sheriff made him any promises, or that he even said that it would be better for him if he did confess. There is some testimony to the effect that the officer suggested a theory of self-defense to the defendant; but, if he did, this was a mere trick, which will not in itself exclude the confession. It abundantly appears that defendant was told not only once, but many times, that he need not answer any questions which would tend to incriminate him, or tend to connect him in any way with the killing of Logue. Before he signed the statement, he was again advised that he did not have to sign it, and that, if he did, it would be used against him in criminal proceedings. At the examination held the previous evening he was not so informed, for the reason, as we suppose, that he was not then charged with any offense, and at most there was a mere suspicion of his connection with the crime.

This is the substance of the testimony as to how the confession was obtained. All statements made by the defendant on the evening of December 12th were excluded by the trial court as having been made under compulsion; and the jury was told that this compulsion was presumed to continue, and that his subsequent statements were involuntary, unless it were shown that the influence was removed, and defendant's condition of mind changed, before the subsequent statements were made. The burden was also placed upon the state to show that the statements made by defendant were free and voluntary.

Under the rule announced in State v. Clifford, 86 Iowa 550, 53 N.W. 299, the trial court was correct in excluding the statements made by defendant on the evening of December 12th, and the only question which arises on this appeal is was there error in submitting to the jury the question of the character of the confession made the...