State v. Saltzman

44 N.W.2d 24, 241 Iowa 1373, 1950 Iowa Sup. LEXIS 342

• Court: Supreme Court of Iowa
• Decided: September 19, 1950
• Docket: 47625
• Status: Published

Opinions

Oliver, J.-

The indictment charged defendant transported intoxicating liquor from the State of Nebraska into the State of Iowa in violation of section 125.26, Code of Iowa, 1946. Trial resulted in his conviction and this appeal.

No evidence was offered by defendant and there was no substantial conflict in the evidence of the State. On the evening of March 9, 1949, a Buick sedanette, immediately followed by a Ford, stopped across from and under the floodlights of the Tankar Oil Company filling station, just north of Des Moines on highway 69 (East Fourteenth Street). The Buick was heavily loaded in the back. The trunk was partly open and appeared to be loaded with boxes or suitcases or “something of that sort.” Defendant and another man were in the Buick. Defendant got out “and then he came running across .the street” to the filling station. “Well, he seemed to be frightened. He said ‘call the police’ * * * he was being hijacked.” He made the call himself and “I heard him say ‘operator’, and give him the police.” Then he made a second telephone call to someone and said “he had lost his stuff.”

Leo Leonard, a state highway patrolman, heard the police radio call and drove to the filling station. When he arrived defendant was “just hanging up the receiver on the telephone.” In the meantime, the Ford car had “pushed the Buick away, north.” A station attendant prepared to follow the cars in his automobile to get the license number of the Ford but hesitated when defendant said “they had a gun.” When the attendant started in pursuit, their taillights were still visible but he was unable to catch them “before they got over the hill” and vanished. Defendant said the Buick belonged to him. “He said at the oil station he jerked the keys out and opened the door and ran into the oil station. In the meantime one of the fellows * * ® the man in the back car * * * ran and jerked the trunk of the Buick open and the other fellow says, ‘not here’, so they pushed it on away.”

Patrolman Leonard testified:,."* * * we wanted to get out and get that car. That was the main thing. I asked him [defendant] to get in the car and we took out in what direction we thought they might have gone, and at that time he told me he had a load of government liquor in the car.” Defendant gave Leonard the license number of his car and Leonard “called it in” by radio. Soon the radio broadcast the news it had been found. They drove to the scene and defendant said it was his car. The trunk was open but there was nothing in it nor elsewhere in the car.

The ear was then returned to the filling station where defendant gave a more detailed account of the hijacking and surrounding circumstances, stating he was bringing from Omaha, Nebraska, eleven cases of whisky and alcohol, two men stopped him in Des Moines, he described their car and said it bore a foreign license plate, they followed him across the city, finally hijacked his liquor at the filling station and threatened to kill him when he went back to the second ear to obtain the license number. Defendant voluntarily repeated this recital several times. Two deputy sheriffs and other officers were present.

Deputy Sheriff Hildreth testified, after this, “I asked him to come down to the county jail, if he would be willing to make a statement of the events that happened, which he said he would be glad to, and Highway Patrolman Leo Leonard and myself took a statement from Mr. Saltzman [defendant] at the Polk County jail that evening.” Hildreth did the questioning and Leonard the typing, and the statement was read by defendant who said it was “true and correct, but he didn’t wish to sign it.”

The statement, Exhibit A, recites in part:

“I left Omaha * * " with a load of liquor designated as follows: 3 cases of alcohol, 2 cases of Scotch, 1 case of Canadian Club, 4 cases of Paul Jones and 1 case of Kinsey. This liquor was purchased at the Lone Star Liquor Co-. * íf " for the amount of $565. * * í:= I followed Highway 6 from Omaha, Neb., into Des Moines, la., until I came to "West 6th or 6th Ave., then turned north to Madison and east to 14th or U. S. 69 and then north to the Tankar Oil Station where my car was taken from me. I ran into the station, using their telephone to notify the authorities of the incident. These two fellows which hijacked me first stopped me when I reached Madison St. telling me they were state men. One entered my ear while the other followed directing me east on Madison and north on E. 14th where my car was taken from me. I arrived in Des Moines from Omaha around 7:30 p.m. 3-9-49.”

The instrument was dated and signed by the two officers with the notation that Saltzman refused to sign but “states the above is true.”

I. Defendant assigns as error the admission of the statement, Exhibit A, in evidence over his objection that it was not signed by him. Although no decision of this court has been called to our attention, it has been generally held, in the absence of contrary statutory provisions, that such a written statement if otherwise proved to have been made by a defendant is admissible although not signed by him. Prather v. State, 76 Okla. Crim. 385, 137 P.2d 249; Bosko v. People, 68 Colo. 256, 188 P. 743; State v. Haworth, 24 Utah 398, 68 P. 155, 156; State v. Foulds, 127 N. J. Law 336, 23 A.2d 895, 897; State v. Folkes, 174 Or. 568, 150 P.2d 17, 20, certiorari denied 323 U. S. 779, 65 S. Ct. 189, 89 L. Ed. 622; Mobley v. State, 227 Ind. 335, 85 N.E.2d 489; Gray v. Commonwealth, 293 Ky. 833, 170 S.W.2d 870; Haines v. State, 158 Fla. 9, 27 So.2d 414; 22 C. J. S., Criminal Law, section 833, page 1456. The objection was properly overruled.

II. Error is predicated upon the overruling of defendant’s motion for directed verdict based upon the insufficiency of the evidence to warrant a conviction. Section 782.7, Code of Iowa, 1946, provides: “The confession of the defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.”

The required “other proof” of the corpus delicti may be by circumstantial evidence as well as by direct evidence. State v. Novak, 109 Iowa 717, 734, 735, 79 N.W. 465; State v. Henricksen, 214 Iowa 1077, 1082, 243 N.W. 521; State v. Townsend, 191 Iowa 362, 364, 365, 182 N.W. 392; State v. Kelley, 193 Iowa 62, 66, 186 N.W. 834; 20 Am..Jur., Evidence, section 1231; 23 C. J. S., Criminal Law, section 916c, page 185.

Exhibit A contained all the essential elements of the crime charged. Hence, it was a confession within the purview of the statute. State v. Webb, 239 Iowa 693, 700, 31 N.W.2d 337; State v. Hofer, 238 Iowa 820, 28 N.W.2d 475; State v. Davis, 212 Iowa 131, 134, 235 N.W. 759.

At this point the question is whether the confession was accompanied with other proof that the offense was committed, as required by the statute. Our decisions have said the statute accords with the general rule in this country that an extrajudicial confession must be corroborated by other proof. State v. Webb, 239 Iowa 693, 702, 31 N.W.2d 337, 342. This other evidence need not of itself, and independent of the confession, be sufficient to prove the commission of the crime beyond a reasonable doubt. It is sufficient if when considered with the confession it establishes beyond a reasonable doubt that the crime was in fact committed by someone. State v. Westcott, 130 Iowa 1, 8, 104 N.W. 341, 343; State v. Stewart, 231 Iowa 585, 588, 1 N.W.2d 626: State v. Henricksen, 214 Iowa 1077, 243 N.W. 521; Evans v. United States, 10 Cir., Kan., 122 F.2d 461, certiorari denied 314 U. S. 698, 62 S. Ct. 478, 86 L. Ed. 558; 20 Am. Jur., Evidence, sections 1233 and 1234; 22 C. J. S., Criminal Law, section 839, pages 1474-1477; 23 C. J. S., Criminal Law, section 916, pages 184, 185.

State v. Webb, 239 Iowa 693, 703, 31 N.W.2d 337, 342, states:

“The required ‘other proof’ is perhaps not strictly corroborative but rather supplemental. The language of the statute is somewhat significant. It does not mention ‘corroboration’ but says ‘unless accompanied with [by] other proof’ * * * that someone is guilty.”

The crime of illegal transportation of .liquor into the state is essentially a continuing act, not confined in its scope to the single instant of passage across a state boundary. Gregg v. United States, 8 Cir., Mo., 113 F.2d 687, 691. In this case defendant’s criminal act would continue until the hijackers took control of the transportation.

The text in 20 Am. Jur., Evidence, section 1233, page 1086, states:

“The grounds on which the rule requiring independent proof of the corpus delicti rests are the hasty and unguarded character which confessions often have, the temptation which for one reason or another a person may have to say that which he thinks it most for his interest to say, whether true or false, the liability which there is to misconstrue or report inaccurately what has been said, the danger of a conviction when no crime may have been committed,, the difficulty of disproving what may be said, and the feeling 'that the rule best accords with the humanity of the criminal law and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases.”

See also Commonwealth v. Killion, 194 Mass. 153, 80 N.E. 222, 10 Ann. Cas. 911.

Most of the evidence in this case concerns what transpired during the period beginning with the arrival of defendant’s car and the hijackers’ car at the filling station and ending with defendant’s final departure from there a short time later. This period was crowded with kaleidoscopic action and excitement for defendant. He appeared to be frightened as he jumped out of the Buick car and ran across to the oil station exclaiming, “call the police,” he was “being hijacked.” He rushed to a telephone and called the police, saw the hijackers start to remove the contents of his car and then push the car away with their Ford automobile, warned the station attendant the ’men had a gun, joined patrolman Leonard in pursuit of defendant’s car and the hijackers saying there was a load of liquor in his car, heard the radio announce his ear had been found about one mile from the filling station, proceeded there, identified the car and saw its contents had been taken, returned to the filling station and told of his trip to Omaha and the hijacking so repeatedly as to attract attention.

It is apparent that during all of this short period defendant was under the spell of the exciting circumstances which had enveloped him and that everything said or done by him was spontaneous. Hence, his exclamations, declarations and statements, as well as everything else which transpired during that period, were part of the res gestae. State v. Berry, 241 Iowa. 211, 215-217, 40 N.W.2d 480, 482-484; State v. Stafford, 237 Iowa 780, 784 et seq., 23 N.W.2d 832; Bruce v. United States, 8 Cir. Mo., 73 F.2d 972, 974. 22 C. J. S., Criminal Law, section 662, page 1046, states, “the res gestae is not confined to the act charged but includes acts, statements, occurrences, and circumstances which are substantially contemporaneous with the main fact and so closely connected with it as to form a part or a continuation of the main transaction and to illustrate its character.” As pointed out in State v. Lewallen, 198 Iowa 382, 389, 199 N.W. 266, 269, “There must be a main or principal fact, which may, however, be either the ultimate fact to be proved or some fact evidentiary of that fact.” See also 32 C. J. S., Evidence, section 405.

“Statements made as part of the res gestae are substantive evidence of the matters stated.” Muntz v. Travelers Mut. Cas. Co., 229 Iowa 1015, 1025, 295 N.W. 837, 843; State v. Minella, 177 Iowa 283, 308, 309, 158 N.W. 645. “The rules relating to res gestae on the one hand, and to admissions and confessions on the other, are separate and distinct; * * 22 C. J. S., Criminal Law, section 667, pages 1055, 1056. State v. Woodmansee, 212 Iowa 596, 606, 607, 233 N.W. 725, 731, states:

“The statement * * ® was admitted on the theory that what was said and done at that time was res gestae and correctly so. There was no thought on the part of anyone that this particular testimony was introduced in evidence for the purpose of an admission against interest on the part of the defendant.”

22 C. J. S., Criminal Law, section 816a, pages 1421, 1422, states: “® * * the term ‘confession’ excludes statements which are a part of the res gestae.”

In State v. Clark, 102 Mont. 432, 437, 58 P.2d 276, 278, defendants were charged with gambling. The sheriff testified to statements made by them during the progress of a stud poker game referring to having bet and lost money. Defendants contended the evidence was insufficient to support the verdicts of guilty in that the corpus delicti was not proved sufficiently, independently of their confessions and admissions. Pointing out that these statements were part of the res gestae the court held that, as applied to the corpus delicti rule, “any statements made by a party which are a part of the res gestae are neither admissions nor confessions.”

In Stout v. State, 142 Tex. Crim. 537, 540, 155 S.W.2d 374, 376, it was contended defendant’s statement was hearsay and a confession not made in compliance with the statute. The court said, “The statement was res gestae, and' not subject to either objection.”

In Calloway v. State, 92 Tex. Crim. 506, 517, 518, 244 S.W. 549, 554, the statements were made by defendant five or ten minutes after the shots were fired. The court quoted from an earlier decision:

“ ‘If res gestae, then the evidence was admissible not withstanding it might not be admissible as a confession or admission, because res gestae is independent of, superior to, and cannot be restricted or limited by the rules relating to confessions or admissions made after arrest. * * * Res gestae are events speaking for themselves through the instinctive words and acts of participants, not the words and acts of participants when relating the events.’ ”

22 C. J. S., Criminal Law, section 730b, page 1248, states, “an extrajudicial admission * * * is not sufficient of itself to support a conviction, unless it is also a part of the res gestae.” In Majors v. State, 100 Tex. Crim. 304, 306, 273 S.W. 267, 268, defendant complained of the refusal of the court to instruct that he could not be convicted upon his own uncorroborated incriminatory statements alone. In affirming the conviction the court said, “These were res gestae statements, and we do not believe that the principle of law contended for by defendant, would be applicable to res gestae statements.”

It is true admissions and confessions are received in evidence under exceptions to the hearsay rule. However, this does not mean that the “other proof” of the corpus delicti may not come indirectly from the lips of defendant. Although such other proof may consist of evidence of exclamations and statements of defendant it may be sufficient if it is free from the inherent weaknesses of extrajudicial confessions or admissions. It is obvious evidence of res gestae exclamations and statements is free from such inherent weaknesses. Although the authorities cited above do not mention this in so many words they must necessarily recognize the reason why such evidence may in itself be sufficient to support a verdict of guilty. The reason is stated as follows in Warszower v. United States, 312 U. S. 342, 347, 61 S. Ct. 603, 606, 85 L. Ed. 876, 880:

“The rule requiring corroboration of confessions protects the administration of the criminal law against errors in convictions based upon untrue confessions alone. Where the inconsistent statement was made prior to the crime this danger does not exist. Therefore we are of the view that such admissions do not need to be corroborated. They contain none of the inherent weaknesses of confessions or admissions after the fact.”

Defendant’s acts and words during the period in question, without exception, accord with and support his subsequent confession. His first exclamation that he was “being hijacked” conveyed the thought he was hauling liquor. According to State v. One Certain Buick Sedan, 209 Iowa 791, 798, 799, 229 N.W. 173, a hijacker is one who holds up, and 'steals booze from, the vehicles of others. Webster’s New International Dictionary, Second Edition, defines hijack — “to rob (from) bootleggers and rumrunners.” Ás they started the pursuit of the hijackers defendant told Leonard he had a load of government liquor in the car. Upon returning to the filling station defendant repeatedly enlarged upon this statement. A witness saw defendant’s ear with the rear part heavily loaded with boxes or suitcases and saw the Ford automobile push it away. Soon defendant’s car was found with nothing in it. All the circumstances and exclamations and statements fit together. Aside from the formal confession they would have been sufficient, in themselves, to support the conviction. We are satisfied also the evidence of the occurrences and defendant’s exclamations at the filling station during the perhaps three or four minutes from the time he was first seen until he joined in the pursuit, without more, would have constituted ample “other proof” of the corpus delicti, accompanying his confession, to warrant submission of the case to the jury.

III. Defendant complains the assistant county attorney who prosecuted the case was guilty of prejudicial misconduct in referring to defendant, in his argument, as a gangster. Upon defendant’s objection the trial court promptly reprimanded the prosecutor in open court, stating there was no1 evidence in the record to support the statement. The prosecutor then frankly stated: “I stand corrected, your honor.” Although the argument was improper we think the action of the court and the retraction by the prosecutor rendered it-nonprejudieial. State v. Dobry, 217 Iowa 858, 865, 250 N.W. 702; State v. Bell, 235 Iowa 767, 16 N.W.2d 218. — Affirmed.

Garfield, C.J., and Hale, Bliss, WeNNErstrum, and Smith, JJ., concur. MulroNey, MaNtz and Hays, JJ., dissent.