193 Ind. 187 | Ind. | 1920
In the Hamilton Circuit Court, appellant was convicted of arson. The subject of the arson was a barn located in Hamilton County, and the property of Gilbert Hanna. Appellant was tried .by the court. Following the overruling of appellant’s motion for a new trial, he was sentenced to imprisonment at the Indiana Reformatory for a period of from two to twenty-one years and to pay a fine of $50.
The only error here assigned is the overruling of the motion for a new trial. Appellee makes the point that the bill of exceptions containing the evidence .is not in the record, for the reason that there is no order-book entry showing that such bill was filed after it was signed by the trial judge. We have examined the record on this subject and find an order-book entry showing that the bill was presented, signed and filed in open court. This showing was sufficient in that respect to make the bill a part of the record. Rose v. Chicago, etc., R. Co. (1914), 181 Ind. 658, 659; Indianapolis Outfitting Co. v. Brooks (1915), 59 Ind. App. 79.
The motion for a new trial contains various causes, the most important of which is the claimed erroneous admission of certain evidence by the court oyer appellant’s objection, and that the effect of the action of the State Fire Marshal was to grant appellant immunity for the crime with which he was charged.
The uncontradicted evidence shows that the fire, which entirely consumed the building, occurred at night on February 27, 1919; that a few days before, and on the afternoon before the fire, appellant told certain persons that he was going to burn the barn and gave his reasons for his intention; that on the morning after the fire, he admitted to one of these same parties that he had burned it. It further appears that the State
This examination, at first being in the nature of questions and answers taken down by a shorthand reporter, was finally reduced to writing in narrative form, signed and sworn to by appellant before a notary public, an employee in the Fire Marshal’s office. This narration was in the nature of a written confession.
At the trial, which resulted in a conviction, the state, over appellant’s objection, was permitted to read in evidence the purported written confession, and witnesses were permitted to testify as to what appellant said concerning the fire and his connection with it while in charge of the arresting officer at the Fire Marshal’s office.
The objection urged against the admission of this evidence, and to which appellant has called our attention, is'to the effect that it was not admissible as tending to prove appellant’s guilt, for the reason that it pertained to admissions of a criminating na
We are thus brought to the question of whether or not appellant waived this constitutional protection. ' If he did, he cannot be heard to complain. If he did not, then the objection in question should have been sustained. .
This court has held that, “A confession, when offered in evidence against the accused, is prima facie admissible, and the necessity of showing its incompetency under the statute is devolved upon him. Thurman v. State (1907), 169 Ind. 240; Ginn v. State (1903), 161 Ind. 292; Hauk v. State (1897), 148 Ind. 238. If the confession of appellee was otherwise voluntary, it could not be rendered incompetent by the mere circumstance that he was, at the time of making it, in the custody of officers, or from the fact that his statements were made in response to questions put to him by the prosecuting attorney. State v. Freeman 12 Ind. 100; Harding v. State (1876), 54 Ind. 359; Benson v. State (1889), 119 Ind. 488; Gillett, Indirect and Collat. Ev. §111; 12 Cyc 466 and cases cited under note 9.” State v. Laughlin (1908), 171 Ind. 66, 70.
In the instant case, the evidence is not as satisfactory, with reference to what took place in the Fire Marshal’s office at the time appellant is said to have given his confession, as we would like to see. But it does appear from the testimony of the Assistant Fire Marshal that appellant was asked — “if he wanted to tell the truth about the matter, come clean on it and tell the truth, or let it go as he had stated in the first place. He says, ‘What can you do for me if I tell the truth about it?’ (Witness.) I told him it was practically out of my hands; when he told the truth, it was up to the prosecutor and the judge of the court. (Witness.) Well, I told him he could do as he liked about it; that I would rather prove it on him than to have him confess, and he decided he would rather confess; I told him
There is some further testimony of this same witness to the effect that he said to appellant, if he was in appellant’s place and wanted to tell the truth, he would do so and throw himself on the mercy of the court, for, if the court saw fit, he might get a reduction of sentence.
There is also evidence tending to show that before any questions were asked appellant, he was advised, “that he had a right to refuse to answer questions if the answers would tend to incriminate him.”
We have no statement from appellant as to what took place at that time, and we will draw no inferences; but it is safe to say the Fire Marshal was acting under the statute authorizing him to “investigate as to the origin and circumstances” of the particular fire in question. §7441h Burns’ Supp. 1921, Acts 1917 p. 429, §4. Such investigations are, in form, not unlike preliminary examinations before a magistrate, and are of a judicial character. Hence it is essential that a confession before such, officer “be made of the free will of the party, and with full and perfect knowledge of the nature and consequences of the confession.” 1 Greenleaf, Evidence (15th ed.) §216. While the evidence in the instant case, aside from the confession, was clearly sufficient to warrant a conviction, yet the manner in which the case was handled by the Fire Marshal takes it close to the border line requiring a reversal. However, the satisfactory character of the evidence after excluding that contested would justify us in adopting the theory that the decision is so clearly right that it ought not to be disturbed, even though the action of the Fire Marshal was-questionable. Hay v. State (1912), 178 Ind. 478, Ann. Cas. 1915C
The further contention of appellant that §4 of the act of 1917, §7441h Burns’ Supp. 1921, supra, amending §8 of an act approved March 12, 1913, Acts 1913 p. 556, is unconstitutional and void for the reason, as construed by appellant, that it requires a witness to give incriminating testimony or evidence without granting him immunities or privileges, as provided by Art. 1, §14, of our Constitution.
This might be a very serious question, if from the evidence we could say that appellant was clearly within the purview of the procedure pointed, out by §8 as amended, supra. State v. Enochs (1879), 69 Ind. 314; Bedgood v. State (1888), 115 Ind. 275. We agree with appellant that his presence before the Fire Marshal was compulsory, and as to the effect of that part of the statute with reference to the disobeying of a subpoena, and other processes for the attendance of witnesses, in this case is unimportant, as the warrant took the place of all such processes; but we cannot agree that the evidence conclusively shows a state of facts from which it can be said that appellant, as a party or as a witness, was required to testify either for or against himself, contrary to his own volition. Therefore, as we are now advised, it will be unnecessary in this case to pass upon the constitutionality of §4 of the amendment act, §7441h Burns’ Supp. 1921, supra.
Finding no error in the record, the judgment is affirmed.