State v. Sedam , 62 Idaho 26 ( 1940 )

This case ought to be either dismissed or reversed and sent back to the trial court for further proceedings. Based upon a view of the whole record, I am impressed with the feeling that appellant has not had that fair and impartial trial which the law accords to every accused person. The contention that the record of the justice's court was admissible in this case on appeal, to prove confession of guilt, is so extraordinary that I deem it proper to make some comment on it.

Here is a case of a 20-year old boy, with a wife and one child, who issued a $15 check to his mother in payment of a board bill. The mother cashed the check at the office of the Pocatello Auto Company and when the company presented it to the bank, appellant had only two cents credit in his account at the bank. The cashier of the auto company filed (evidently for collection purposes), a complaint in the justice's court, charging defendant with issuing a check without funds in the bank to meet it. The constable was sent out and arrested defendant and took him before the justice of the peace, and here is his undisputed testimony as to what occurred when he was taken into court:

Q. "Now, what did you do?

A. "And Judge Hinckley told me what the complaint was; he didn't read it. He told me I was charged with issuing a check without funds to cover it, and he asked me how I plead and I said I guess I wrote the check, and I started to say I didn't intend to defraud anyone, or gyp anyone out of their money, and he cut me off short and said the judgment of this court is to serve ninety days in the county jail.

Q. "Was there anything further said there?

A. "Yes, sir. I knew he was in possession of the check. I guess he had gotten it along the first of January, I don't know about that, but on several different occasions he had promised to wait until the first of February before doing anything he would give me until the first of February to pay it, and my mother called him and he said the same thing to her, and my wife called and he said the same thing to her, but when I was brought into his court he said pressure was brought on him and he couldn't help it."

It is admitted that appellant had an account at the bank on which this check was drawn and that he had made a deposit of $125 November 28th and a further deposit of $25 November 29th, and this check was drawn on December 11th. In the meanwhile the deposit had been reduced to a balance of two cents. The justice of the peace sent defendant to jail for a period of ninety days without further ceremony. The defendant or his wife or mother, or someone, succeeded in paying the check and getting an attorney to prosecute an appeal from the justice's judgment to the district court. Before the case was called for trial in the district court, the check having been paid, all the partiesinterested (in the collection) joined in requesting a dismissal of the case. (See secs. 19-3301, 19-3302.)

At the trial, this so-called "Justice's Criminal Docket" (set out as note No. I in the majority opinion) was introduced in evidence before the jury as proof of a confession of guilt. And just here it should be remembered that this document was introduced as a part of the state's case in chief; and no testimony was taken whatever prior to the introduction of this document, showing or tending to show the surrounding circumstances or facts under which the so-called admission or confession was made or when or by whom the record was entered. The judge, who is supposed to have made this entry, was not in the courtroom or examined, and it was certified by his successor in office, who personally knew nothing about the case. Moreover, a justice's court is not a court of record under the Idaho statute. (Secs. 1-101, 1-102, I. C. A.) The plea of guilty (if made in the justice's court) was vacated by the appeal and the case went to trial on appeal as on a plea of not guilty.

It has heretofore been held by this court that an appeal may be taken from the judgment of a justice's or probate court in a criminal case, irrespective of whether a plea ofguilty or not guilty was entered in that court. (State v. Dawn,41 Idaho 199, 203, 239 P. 279; State v. Stafford, 26 Idaho 381,143 P. 528].) Here we have the anomaly of the defendant appealing to the district court from a judgment of conviction had in the justice's court and, when his case comes on for trial on appeal, introducing the record of the proceeding made by the justice court as evidence against him on appeal from thejudgment in the same case.

It should be remembered that this so-called record was not introduced for the purpose of contradicting something the defendant had testified to, — he had not yet testified at all. It was clearly introduced for the purpose of proving a confession or admission of guilt. It is fundamental that a confession or admission of guilt cannot be proven by whatsomebody else has written. It call only be proven by the declaration of the party accused, either made orally or in writing and signed by him. In this case the defendant did not sign anything. The document as introduced was simply an entry supposed to have been made by a justice of the peace, without any evidence whatever as to the surrounding circumstances under which it was made, or whether or not the defendant was present when the entry was made or was questioned or made any other statements or explanations or anything of the kind; and all of which is required to be shown on the introduction of a confession or admission in a criminal prosecution. (Underhill, Crim. Ev., 3d ed., sec. 220 et seq.; 2 Wharton, Crim. Ev., 11th ed., secs. 591, 595.)

I have no doubt about the admissibility of any confession or admission the defendant made, if it was done under circumstances sanctioned by the generally accepted rules of law, where the defendant is confronted with the witness or witnesses who testified to the confession or admission; and he is accorded the right of cross-examination as to all things that occurred at the time, disclosing the circumstances under which the confession or admission was made. I do insist, however, that it cannot be lawfully proven by some entry or record made by a justice of the peace or anyone else. Here it is not even shown that this so-called record was written by the justice in whose docket it appeared.

Not a single case is cited in the majority opinion which sustains the admission of a record of a justice court for the purpose of proving confession of guilt as was done in this case. Moreover, some of them are under special statutes. For illustration, — Keenan v. Washington Liquor Co., 8 Idaho 383,69 P. 112, was a civil action to recover on an undertaking given on claim and delivery. The action was originally commenced in the probate court and then appealed to the district court. In the latter court a controversy arose as to whether an original complaint, which had been filed in claim and delivery, was predicated upon the same grounds and right of recovery as an amended complaint which was thereafter filed in the same case and court. This court said (p. 388):

"Upon the trial the court admitted in evidence, over appellants' objections, the original complaint, summons, and affidavit on claim and delivery, notice on claim and delivery, and other original files in the action commenced by the appellant the Washington Liquor Company, as plaintiff, against said constable, Dudley Gilman, in said justice's court; and the court also admitted the pleadings and original files in the action brought by the respondent, Keenan, against said Russell in the probate court, over the objections of said appellants; and the action of the court in admitting such documentary evidence constitutes the grounds upon which the third, fourth, fifth, sixth, and seventh assignments of error are based. The appellants contend that the admission of such evidence was improper, because the same, being records in the said inferior courts, was not admissible, and that the respondent should have introduced copies of the same. This contention is not well taken. The said records were competent evidence, and properly admitted as such at the trial."

In State v. Call, 100 Me. 403, 61 A. 833, the court held, as I contend here, that the confession was properly proven by testimony of witnesses who heard it in the courtroom. It was urged by counsel that it should have been proven by the record.Uhlenhake v. State, 58 Okl. Cr. 248, 52 P.2d 117, was a prosecution for obstructing an officer executing a search warrant; and it was held that the record of the court, in the issuance of the search warrant, was the best evidence of the regularity of its issuance and contents of the affidavit and writ.

In Bowman v. State, 73 Tex. Cr. R. 194, 164 S.W. 846, the defendant had previously pleaded guilty to vagrancy and apparently the judgment had become final. At any rate, the opinion of the court seems to be adverse to the contention made in the majority opinion here. Among other things, the court said:

"The duty was upon the state to first show under what section of the vagrancy statute, if this was what was intended the defendant had been charged, and had pleaded guilty, before such a plea, if admissible at all, could have been admissible in this ease. The court overruled the objection, and the testimony went before the jury. We think this was error. It was not and could not have been admitted for the purpose of impeaching the defendant's testimony, because it was her written statement and known to the state, and it could not be used as original testimony, unless she had pleaded guilty under this phase of the vagrancy statute. This testimony should not have been permitted to go to the jury."

Gittens v. Whelchel, 12 Ga. App. 141, 76 S.E. 1051, was a civil action to recover a board bill and has no bearing whatever here.

State ex rel. Brockway v. Whitehead, 88 Wash. 549,153 P. 349, was on an application for a writ of prohibition, to prohibit the supplying of a lost record in a justice's court. Nothing said in this case supports the contention here made.

Whitwell v. State, 65 Okl. Cr. 178, 83 P.2d 881, 885, was a prosecution for unlawful possession of intoxicating liquor and the question arose as to the sufficiency of an affidavit to justify the issuance of a search warrant in the case. It was held:

"that the best evidence must be produced of which the nature of the case is capable . . . ." and that "The record itself is the evidence, and the affidavit and the warrant issued thereon is the best evidence of what they contend."

The court also said: "It is evidence from the record that the defendant was convicted, the evidence and the law to the contrary notwithstanding."

If the state desired to prove a confession or admission, counsel should have called witnesses who heard his statement and introduced their testimony before the jury where they couldhave been cross-examined. That would have been primary evidence of such fact. On the other hand, this record was hearsay and secondary evidence and inadmissible under objection.