Flamme v. State, 171 Wis. 501

171 Wis. 501 | Wis. | 1920

Siebecker, J.

The main questions presented for decision are whether or not the confession of Mabel Banker to the district attorney was competent evidence, and whether the court erred in refusing the defendants’ requests for separate trials.

The facts concerning the confession made to the district attorney by Mabel Banker disclose that she at that time was nineteen years of age; that she resided with her mother at their home in Richland Center; that the sheriff called at their house and asked her to accompany him to the office of the'district attorney in the courthouse; that her mother went with her, and that they both believed Mabel Banker was under the command of the sheriff to do this. When they arrived at the courthouse the mother was not permitted to be in the office room of the district attorney with the daughter; the district attorney and sheriff were the only persons present in the room with her, and she was detained in this room for about an hour and a half while being questioned concerning her conduct as to having had sexual intercourse with Flamme. She testifies that áhe informed them that she had had no 0such relations with Flamme, but under their influence she was persuaded to confess having committed this offense with Flamme, and made this confession upon the assurance then made to her that such statement'would shield her from being prosecuted for such an offense. It appears that the district attorney prepared the written statement of her confession and presented it to her for her signature; that after being informed of its contents and a correction made of a misstatement in it, she then signed it, and was sworn by the district attorney as to its truthfulness.

The testimony of the district attorney and sheriff is to the effect that the sheriff called upon her, as she declares, but that she went freely and voluntarily to the district attorney’s office with the sheriff upon his invitation; that while there she was questioned by the district attorney concerning her conduct while on trips .with Flamme from Richland Center and in the-city; that she was not advised of her privilege that she was not required to incriminate herself before them; and that though she at first denied criminal relations with Flamme, she finally freely admitted her transgressions and consented to make a sworn written statement, and that she signed and swore to this statement voluntarily before leaving the office of the district attorney.

The facts and circumstances surrounding the securing of the confession as disclosed by the record indicate with reasonable certainty that Mabel Banker did not act freely and voluntarily in her disclosures made to the district attorney. A study of the record compels the conviction that she did not volunteer to make a confession of her criminal conduct. ' Her entire conduct indicates that she made this written statement under conditions and influences which coerced her to do this against her will. While we are satisfied that the officers made no promise of immunity from prosecution if she confessed, yet it is apparent that she did not act voluntarily in the matter. Intimations of disfavor toward her by the officers having authority to prosecute her for the offense under consideration are sufficient to exclude the conclusion that her confession was a free and voluntary act. The whole transaction, from the time the sheriff called at her home and asked her to go with him to the district attorney’s office to the time she affixed her signature to the typewritten statement under oath before leaving the office, shows she was placed in circumstances that operated to coerce her and deprive her .of free and voluntary action in respect to the inquiries put to her. The situation presented by the record is aptly characterized in an early case in this court in speaking of the effect on a person in such a situation :

“He may be surrounded by those whose suspicions are excited to a degree amounting to accusation, and be fully aware that his escape would be impossible if attempted, and be pressed with questions in such manner and under such circumstances as to render his answers compulsory. But this would be in the nature of duress.” Schoeffler v. State, 3 Wis. 823, 844.

Under such circumstances the statements are not voluntary, and are incompetent as evidence against the party accused. Bianchi v. State, 169 Wis. 75, 171 N. W. 639.

It must be held that Mabel Banker’s confession was incompetent evidence and erroneously received in evidence. The argument that her repetition of the confession in police court on the preliminary examination of Flamme was a voluntary statement is not substantiated by the record. The facts and circumstances show that she obviously acted upon the belief that her written and sworn confession made to the district attorney compelled her to repeat it on the witness stand before the police justice. This left her testimony on that occasion unpurged of the duress that attended it from the beginning.

It is contended that the court erred in refusing to grant the defendants’ requests for separate trials. The question of granting defendants in criminal cases separate trials, when jointly informed against for offenses arising out of the same transaction, is largely within the discretion of the trial court. Mayfield v. State, 142 Wis. 661, 126 N. W. 15.

The instant case presents the peculiar situation that the offenses charged against the defendants, though different in degree, necessarily arise out of the same criminal act. The court in receiving the confession of Mabel Banker properly held it was not competent evidence against Flamme, and so instructed the jury. Yet in the very nature of the evidence, if it was considered proof of the guilt of Mabel Banker of the offense charged against her, then it inevitably followed that it proved the offense charged against Flamme. We can conceive of no mental process by which the jurors could do otherwise than so regard it, and thus necessarily prove the offense of Flamme. This clearly presents a case where the confession of a defendant, admissible against her but not against a codefendant, must inevitably operate to the prejudice of the latter defendant’s rights. Under these conditions a denial to grant separate trials is clearly an abuse of discretion.

The district attorney’s statement in his closing argument, “I knew of these acts of Flamme and his riding around town with these young people and his trips to Muscoda,” is objectionable as a statement of evidentiary facts not permitted by counsel as argument to the jury. The court upon objection should have cautioned the jury not to consider such statement as evidence in their deliberations on the case.

By the Court. — The judgment is reversed, and the cause is remanded for a new trial with directions to grant the defendants’ requests for separate trials.