Hays, C. J.
— Defendant was convicted of breaking and entering the Atlantic, Iowa, high school building in violation of section 708.8, Code of 1946, and he appeals.
There is no substantial dispute in the facts except as to the circumstances surrounding the making of an alleged confession. The record shows the following: About 1:30 a. m. Sunday, September 26, 1948, police found appellant’s car parked near the entrance to the school building. It contained tools, some liquor and an Ohio license plate. While the authorities were preparing to remove the car, appellant came from a direction opposite the school building and claimed ownership thereof. He was taken into custody and placed in jail. During the forenoon of Sunday, he was questioned by the deputy sheriff and the county attorney as to his identification and was told that he would be held until Monday, pending further investigation. About noon, the sheriff’s office was notified that the school building had been entered during the night. About three p. m. appellant was taken to the sheriff’s office and questioned by the deputy sheriff, a highway patrolman and the county attorney until five p. m., when the county attorney left. About 5:15 p. m. the appellant made an oral statement to the two officers and was
returned to jail about six p. m. Around 9:30 a. m. Monday, tbe 27th, a clerk in the sheriff’s office, in the presence of the deputy sheriff, took a statement from appellant, typed the same and witnessed the signing thereof by appellant. This statement was given in the jail near appellant’s cell. About eleven a. m. he was taken before a justice of the peace where charges were filed, and he was then given the right to contact counsel. An indictment was returned October 8 and the trial commenced October 18, with the result as above stated.
I. Appellant asserts that the trial court erred in admitting into evidence the alleged confession, known in the record as Exhibit 4A and 4B, for the reason that the same was obtained by the use of threats and physical violence. The record shows the following proceedings: Upon the appellee’s main case, the deputy sheriff and the patrolman told of the statement made by appellant and stated that it was freely and voluntarily given. They denied upon cross-examination that threats or force were used. The clerk stated that at the time she took the statement she heard no threats or promises and that she did not observe any bruises upon appellant. 'When she was asked to identify Exhibit 4A and 4B, objection was made upon the ground that it had been obtained by extortion and coercion. The objection was overruled, the court stating that there was no evidence to that effect. When the clerk was asked to read the same to the jury it was objected to upon the ground of its being irrelevant and incompetent. The same was overruled and the statement read into the record.
Appellant, as a witness in his own behalf, states that he was questioned, as above set forth. He says he was told by all three of his questioners that unless he told the truth and cleared up the matter he might lose his son; that after the county attorney left the office; the two officers immediately commenced beating and abusing him, especially the patrolman; that finally, to avoid further abuse, he told them he would agree to anything that they wanted; that after making the statement the patrolman told him that there was more to come; that he signed the statement on Monday because of the threats and abuse on Sunday.
Dr. Giegerich, as a defense witness, states that he examined appellant at the jail about noon on Tuesday, the 28th. He found both of his eyes bruised and discolored; his lips cut and bruised,
and his arms, legs and back bruised and discolored. He estimates they were caused some twenty-four to thirty-six hours prior to his seeing him and says that they could not be self-inflicted.
Reverend Dohrman, a Lutheran minister, states that he called upon appellant at the jail about noon of the 27th and observed a discolored eye and some blood on the back of his shirt.
Harley Johnson, a photographer, states that he took color pictures of appellant at the jail and observed the bruised condition of his eyes, arms, legs, and back. The pictures were not available at the time of trial as. they had not been returned from New York, where they had been sent to be processed.
In rebuttal, appellee recalled the deputy sheriff, who merely stated that he had heard appellant’s testimony and that it was not true. No other rebuttal testimony was offered. No motion was made to withdraw the exhibit from the record at this time, but in the motion for a directed verdict the question of the admissibility of the exhibit was presented to the court and overruled, the court stating that there was a direct conflict in the testimony sufficient to make it a question for the jury. Appellee, in its brief and argument, does not question the manner in which this proposition is presented and fully argues the same. We deem the question is properly before us for determination.
Both parties agree that the Iowa law is well-settled on this question and appellee, in argument, states, “There can be no question but what the sole test of the admissibility* of a confession in the State of Iowa is, was it made freely and voluntarily and without compulsion or inducement of any kind.” That this is a correct statement of the Iowa rule, see State v. Fidment, 35 Iowa 541; State v. Storms, 113 Iowa 385, 85 N.W. 610, 86 Am. St. Rep. 380; State v. Thomas, 193 Iowa 1004, 188 N.W. 689; State v. Hofer, 238 Iowa 820, 28 N.W. 2d 475; State v. Webb, 239 Iowa 693, 31 N.W. 2d 337; Annotation 85 A.L.R. 870.
It
is. also the established rule in Iowa that the admissibility of a confession is a question for the court to determine, but if a substantial conflict arises in the evidence the question becomes one for the jury under proper instructions. The rule is well-stated in State v. Harding, 204 Iowa 1135, 1145, 216 N.W. 642, 647, .as follows. “ <* * * it is settled in this state that, where the free, and voluntary character of the statements relied upon as
a confession is the subject of
dispute
or
conflict
in the evidence, the question may properly be submitted to the jury. * * * If, however, it clearly appears from the record that the alleged confession was not freely and voluntarily made, or if the State, by its own evidence, negatives these essentials to its use in evidence, it is the duty of the court to sustain the objection and refuse its submission to the jury.’ ”
See also State v. Pardoe, 199 Iowa 842, 201 N.W. 75; State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959.
We do not think a substantial conflict or dispute exists in the instant record. It is true that both the deputy sheriff and the patrolman upon the main case deny under cross-examination that they threatened or abused appellant, and the clerk states, on cross-examination, that she did not observe bruises on appellant or hear any threats and, as stated in State v. Kress, 204 Iowa 828, 832, 216 N.W.
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Hays, C. J.
— Defendant was convicted of breaking and entering the Atlantic, Iowa, high school building in violation of section 708.8, Code of 1946, and he appeals.
There is no substantial dispute in the facts except as to the circumstances surrounding the making of an alleged confession. The record shows the following: About 1:30 a. m. Sunday, September 26, 1948, police found appellant’s car parked near the entrance to the school building. It contained tools, some liquor and an Ohio license plate. While the authorities were preparing to remove the car, appellant came from a direction opposite the school building and claimed ownership thereof. He was taken into custody and placed in jail. During the forenoon of Sunday, he was questioned by the deputy sheriff and the county attorney as to his identification and was told that he would be held until Monday, pending further investigation. About noon, the sheriff’s office was notified that the school building had been entered during the night. About three p. m. appellant was taken to the sheriff’s office and questioned by the deputy sheriff, a highway patrolman and the county attorney until five p. m., when the county attorney left. About 5:15 p. m. the appellant made an oral statement to the two officers and was
returned to jail about six p. m. Around 9:30 a. m. Monday, tbe 27th, a clerk in the sheriff’s office, in the presence of the deputy sheriff, took a statement from appellant, typed the same and witnessed the signing thereof by appellant. This statement was given in the jail near appellant’s cell. About eleven a. m. he was taken before a justice of the peace where charges were filed, and he was then given the right to contact counsel. An indictment was returned October 8 and the trial commenced October 18, with the result as above stated.
I. Appellant asserts that the trial court erred in admitting into evidence the alleged confession, known in the record as Exhibit 4A and 4B, for the reason that the same was obtained by the use of threats and physical violence. The record shows the following proceedings: Upon the appellee’s main case, the deputy sheriff and the patrolman told of the statement made by appellant and stated that it was freely and voluntarily given. They denied upon cross-examination that threats or force were used. The clerk stated that at the time she took the statement she heard no threats or promises and that she did not observe any bruises upon appellant. 'When she was asked to identify Exhibit 4A and 4B, objection was made upon the ground that it had been obtained by extortion and coercion. The objection was overruled, the court stating that there was no evidence to that effect. When the clerk was asked to read the same to the jury it was objected to upon the ground of its being irrelevant and incompetent. The same was overruled and the statement read into the record.
Appellant, as a witness in his own behalf, states that he was questioned, as above set forth. He says he was told by all three of his questioners that unless he told the truth and cleared up the matter he might lose his son; that after the county attorney left the office; the two officers immediately commenced beating and abusing him, especially the patrolman; that finally, to avoid further abuse, he told them he would agree to anything that they wanted; that after making the statement the patrolman told him that there was more to come; that he signed the statement on Monday because of the threats and abuse on Sunday.
Dr. Giegerich, as a defense witness, states that he examined appellant at the jail about noon on Tuesday, the 28th. He found both of his eyes bruised and discolored; his lips cut and bruised,
and his arms, legs and back bruised and discolored. He estimates they were caused some twenty-four to thirty-six hours prior to his seeing him and says that they could not be self-inflicted.
Reverend Dohrman, a Lutheran minister, states that he called upon appellant at the jail about noon of the 27th and observed a discolored eye and some blood on the back of his shirt.
Harley Johnson, a photographer, states that he took color pictures of appellant at the jail and observed the bruised condition of his eyes, arms, legs, and back. The pictures were not available at the time of trial as. they had not been returned from New York, where they had been sent to be processed.
In rebuttal, appellee recalled the deputy sheriff, who merely stated that he had heard appellant’s testimony and that it was not true. No other rebuttal testimony was offered. No motion was made to withdraw the exhibit from the record at this time, but in the motion for a directed verdict the question of the admissibility of the exhibit was presented to the court and overruled, the court stating that there was a direct conflict in the testimony sufficient to make it a question for the jury. Appellee, in its brief and argument, does not question the manner in which this proposition is presented and fully argues the same. We deem the question is properly before us for determination.
Both parties agree that the Iowa law is well-settled on this question and appellee, in argument, states, “There can be no question but what the sole test of the admissibility* of a confession in the State of Iowa is, was it made freely and voluntarily and without compulsion or inducement of any kind.” That this is a correct statement of the Iowa rule, see State v. Fidment, 35 Iowa 541; State v. Storms, 113 Iowa 385, 85 N.W. 610, 86 Am. St. Rep. 380; State v. Thomas, 193 Iowa 1004, 188 N.W. 689; State v. Hofer, 238 Iowa 820, 28 N.W. 2d 475; State v. Webb, 239 Iowa 693, 31 N.W. 2d 337; Annotation 85 A.L.R. 870.
It
is. also the established rule in Iowa that the admissibility of a confession is a question for the court to determine, but if a substantial conflict arises in the evidence the question becomes one for the jury under proper instructions. The rule is well-stated in State v. Harding, 204 Iowa 1135, 1145, 216 N.W. 642, 647, .as follows. “ <* * * it is settled in this state that, where the free, and voluntary character of the statements relied upon as
a confession is the subject of
dispute
or
conflict
in the evidence, the question may properly be submitted to the jury. * * * If, however, it clearly appears from the record that the alleged confession was not freely and voluntarily made, or if the State, by its own evidence, negatives these essentials to its use in evidence, it is the duty of the court to sustain the objection and refuse its submission to the jury.’ ”
See also State v. Pardoe, 199 Iowa 842, 201 N.W. 75; State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A.L.R. 959.
We do not think a substantial conflict or dispute exists in the instant record. It is true that both the deputy sheriff and the patrolman upon the main case deny under cross-examination that they threatened or abused appellant, and the clerk states, on cross-examination, that she did not observe bruises on appellant or hear any threats and, as stated in State v. Kress, 204 Iowa 828, 832, 216 N.W. 31, 32, the State was not required “to affirmatively refute a matter of this character as part of its main case”; but, after appellant’s case was in, including not only his own statement but also those of the physician, the minister and the photographer, the sole rebuttal was the deputy sheriff’s to the effect that appellant’s testimony was not true. So far as the physical violence is concerned the physical facts overwhelm the mere denial by the officers and clerk. Appellant was in the custody of the State during all of the time in question. It is without dispute in the record that he was in good condition at the time of his arrest on September 26. It cannot well be denied under this record but that somehow, somewhere, sometime, and by someone, appellant was subjected to personal abuse and violence while in the custody of appellee. In the absence of some showing as to this upon the part of the appellee, other than ahove-stated, the clear weight of the evidence is with the appellant and the confession should have been withdrawn from the record. In this connection see People v. Barbato, 254 N.Y. 170, 172 N.E. 458.
Further, upon the question of the alleged threats by the county attorney to the effect that appellant might lose his son, there is no conflict or dispute in the record, as it is virtually conceded by the county attorney in his cross-examination' of appellant, as follows:
. “Q. I believe you testified on direct examination I made some statement about your losing your son * *
* ¶
A. Yes, sir. # * * Q. Well, what did I say? A. Well, we would have to tell the truth, I would have to tell the truth and get this cleared up for I might lose my boy. Q. Have you lost the boy ? A. Well, I understand that he is in the custody of my attorney * * *. Q. Do you remember we had a juvenile hearing recently? A. Yes, I do. * * * Q. So anything I said in regard to David [the son] wasn’t a threat, was it ?”
If in the instant case there was the bare statement by the appellant as to the threats, a dispute or conflict would exist and it would be similar to the situation in State v. Pardoe, State v. Harding, and State v. Webb, all supra. However, it is clearly one where the appellee by its cross-examination removes any doubt as to the threats being made. As to the effect of the threats upon appellant, see State v. Jay, 116 Iowa 264, 89 N.W. 1070.
Under this record we are satisfied that Exhibit 4A and 4B should have been withdrawn from the record and that the failure to do so constitutes reversible error.
II. Appellant assigns as error the giving of instruction No. 17, which is as follows:
“Exhibit 4A and 4B herein states that it was given by the defendant of his own free will and without any force of any kind. You are instructed that where a confession appears on its face to have been freely and voluntarily made, the burden is oh the defendant to show by a preponderance or greater weight of the evidence that it was not made of his own free will, without any force, and, therefore, not voluntarily made and is yoid for that reason.”
In instruction No. 18 the court told the jury that if they found that the alleged confession had been obtained by force, threats, etc., they should not consider the same “as in any way bearing on the guilt or innocence of the defendant.” .
In considering this assignment of error it should be kept in mind that the question here considered is materially different ■from the one involved in Division I hereof, which deals with the admissibility of the confession. The question there considered has no connection with the jury. The question here entirely con
cerns the jury and may be stated as follows: What is the proper instruction to the jury, the confession having been admitted in evidence ?
Appellant assails instruction No. 17 as placing an undue burden upon the defendant. Appellee insists that it is a correct statement of the law and cites a long line' of authority where the general statement is made that “the burden is on the defendant to show that it [the confession] is incompetent.” Among the cases so cited are State v. Storms, supra; State v. Icenbice, 126 Iowa 16, 101 N.W. 273; State v. Plude, 230 Iowa 1, 296 N.W. 732; State v. Bisanti, 233 Iowa 748, 9 N.W. 2d 279. In each of the above cases, and in others cited, a careful reading thereof shows that the statement in question is limited to the question of the admissibility of the confession and they almost universally state that the question is for the jury under proper instructions. In no case cited by the appellee is found, nor has our own research brought to light, a single instance where the court has, as here, instructed the jury that the burden was upon the defendant to show the confession to be involuntary. In fact, in "most of the cases the jury have been told that the confession may be considered by them only if they find that it was freely and voluntarily given, with no mention being made as to the burden of proof upon this question. Instruction No. 18, in the instant case, is in accord with the usual instruction. In the cases where the burden of proof is mentioned it has been placed upon the State. State v. Bennett, 143 Iowa 214, 121 N.W. 1021; State v. Bittner, 209 Iowa 109, 227 N.W. 601; State v. Johnson, 210 Iowa 167, 230 N.W. 513; State v. Boston, 233 Iowa 1249, 11 N.W. 2d 407. See also State v. Hofer, 238 Iowa 820, 28 N.W. 2d 475. We are satisfied that the burden rests upon the State to convince the jury that the confession was voluntary before they may consider the truth or falsity of the same. The instruction given in the instant case is erroneous and prejudicial to appellant in that it places an undue burden upon him.
While other assignments of error have been argued* we do not deem it necessary to pass thereon in view of the above pronouncement. For the reasons above set forth the judgment of the trial court is reversed. — Reversed and remanded.
Hale, Smith, Mantz, and Mulboney, JJ., concur.
Bliss and Olivee, JJ., concur in Division I.
Gabfield and Wenneestbum, JJ., dissent.