Tramp v. State

176 N.W. 543, 104 Neb. 222, 1920 Neb. LEXIS 125

• Court: Nebraska Supreme Court
• Decided: February 14, 1920
• Docket: No. 21266
• Status: Published

Opinions

Aldrich, J.

Prosecution for violation of chapter 187, Laws 1917. Complaint was filed in county court of Knox county charging, among other things, that on the 18th of July, 1918, defendant gave 'and furnished intoxicating liquors to another. This act was a second offense; the first offense having been committed in Dixon county. There were three counts in the information. The jury acquitted defendant on the second and third counts, finding him guilty only on the first count.

Several assignments of error are set out in defendant’s brief. It is necessary to consider but two: First, was there proper and sufficiént foundation laid for introduction in evidence of a written statement or confession of defendant?

The court permitted introduction of the statement of defendant over his objection and offer to prove that this statement was made under duress while defendant was surrounded by an angry crowd making threats and talking of producing a rope, and while defendant was in fear of great bodily harm. The admission in evidence of a confession or statement made under these circumstances constitutes reversible error.

After permitting this statement to go before the jury, its weight and certain impressions would be lodged with the jurors, and the burden would, in effect, be upon defendant to show that the confession was made under threats of violence and in the presence of a crowd of men who were acting like members of a mob. This is prejudicial error.

The defendant signed and acknowledged the statement in the presence of the county attorney with the crowd in close proximity. It was an abuse of discretion for the trial court to allow the jury to receive this evidence without first giving defendant opportunity to prove under what conditions and circumstances the statement was obtained. It was the duty of the trial judge to pass upon the sufficiency of the foundation. The only theory on which such a statement is permissible of being introduced is where given voluntarily, without fear of punishment, or hope of reward, and free from violence and any possible bodily harm.

The verdict of the jury is reversed, and the cause is remanded for further proceedings.

Reveksed.

Rose, J., dissents. Letton and Day, JJ., not sitting.