State v. Thomsen , 204 Iowa 1160 ( 1927 )

We glean the following facts from the record:

One Johannes Broderson operated a soft-drink parlor and restaurant in the town of Charlotte, in Clinton County, Iowa. The building in which he was accused of maintaining a liquor nuisance consisted of a front room, known as the soft-drink parlor, and some rear rooms that were occupied by Broderson and his wife as a residence. In the early part of 1927, Broderson was convicted of maintaining a liquor nuisance, sentenced to the county jail, and on February 7th was taken there to serve his sentence. The defendant in this case, Pete Thomsen, at times assisted Broderson in and about his place of business. The evidence shows that, before Broderson left, he requested Thomsen to conduct his business while he (Broderson) was serving his time. In pursuance thereof, the defendant, Thomsen, looked after Broderson's business, and boarded and roomed in this building during this time. Mrs. Broderson, not being informed of this arrangement between her husband and the defendant, considered Thomsen an intruder, and a dispute arose between them about this matter, and she applied to the county attorney for relief.

All of the testimony given in the case that in any way tends to support this indictment is given by Mrs. Broderson, and when this testimony is analyzed, it is found insufficient to support the verdict. She does not testify that she saw Thomsen have any liquor in the building, or that she saw him sell any, or offer to sell any. It is true that in one place in her testimony she says that Thomsen sold liquor, but immediately explains by saying that she knows this because "Thomsen told her so;" and it is on this confession so made to her by Thomsen that the State must rely to sustain this conviction. She states the confession several different times in her testimony; but for the purposes of this case, we accept it as a confession on the part of the defendant.

Section 13903, Code of 1924, reads as follows:

"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."

To put this in another way, the corpus delicti of the crime must be proved; and, regardless of what the confession may be, if the corpus delicti is not proved, the conviction cannot stand. Such has ever been the rule of this court, since the case ofState v. Turner, 19 Iowa 144, and has been consistently applied. See State v. Lewis, 45 Iowa 20; State v. Feltes, 51 Iowa 495;State v. Dubois, 54 Iowa 363; State v. Westcott, 130 Iowa 1;State v. Abrams, 131 Iowa 479.

As applied to this case, there must be evidence to show that this defendant was conducting a nuisance at the time and place in question, and this evidence must come from sources other than the confession made outside of open court. This does not mean that the person to whom the confession was made cannot also testify to the corpus delicti, but means that, regardless of the source from which it comes, and regardless of the contents of the confession, if there is not some other testimony, aside from the confession itself made outside of open court, a conviction cannot stand.

We have read this record with care, and must say that, taken as a whole, outside of the confession itself, there is no proof whatever of the corpus delicti. This being our conclusion, it necessarily follows that the defendant was not rightfully convicted. — Reversed.

EVANS, C.J., and De GRAFF, MORLING, and WAGNER, JJ., concur.