WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JACOB M. BRAUDE, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1960.
Anthony Dale was convicted of robbery and was sentenced by the criminal court of Cook County to the penitentiary for a term of not less than five nor more than eight years. Defendant prosecutes this writ of error for a review of the proceedings.
A principal assignment of error is that the defendant's confession was erroneously admitted in evidence at the trial because there was evidence that the confession had been coerced from him and the People failed to produce and question all persons connected with the taking of the confession. This court on numerous occasions has held that where there is evidence that a confession has been extorted from an accused, the prosecution must, if feasible, produce all persons connected with taking the confession in order to ascertain whether it was voluntary. (People v. Sammons, 17 Ill.2d 316; People v. Wagoner, 8 Ill.2d 188; People v. Rogers, 303 Ill. 578.) However, as was pointed out in People v. Jennings, 11 Ill.2d 610, it is not a mechanical rule but a practical one, designed to assist the court in determining whether the confession was voluntary. It was there held that each material witness, on the issue of the voluntary nature of the confession, must be produced or his absence explained. The question is whether the requirement was satisfied here.
The defendant testified that he was beaten by police officers, Harte and Mulvey, until he agreed to sign a confession. Harte testified that neither he nor Mulvey beat Dale. Mulvey was not called as a witness. The People assert that he did not testify because he was in another courtroom in another building. This falls short of a showing that it was not possible or feasible to produce Mulvey, and is clearly a failure to comply with the rule that every material witness on the question of the voluntary nature of the confession must be produced or his absence explained. (See People v. Jennings, 11 Ill.2d 610.) Mulvey is certainly a material witness since he is one of the two officers who allegedly coerced the confession.
The People point out that Dale made an oral confession before he signed the written confession which was introduced at the trial without objection. It is argued that this confession is controlling. There appears to be but a single confession here. Dale made an oral statement which was almost contemporaneously reduced to writing and signed by him. The objection to the introduction of the written confession properly raised the issue of whether the confession was voluntary.
It is finally argued that the trial court in his finding of guilty did not rely upon the confession. A confession is evidence of a highly convincing nature, and it could have easily influenced the trial court's finding of guilty.
The judgment of the criminal court of Cook County is reversed and the cause is remanded to that court for a new trial.
Mr. JUSTICE BRISTOW, dissenting:
The majority opinion reverses this case and remands it for a new trial on the ground that a material witness was not called to rebut defendant's claim that the confession admitted in evidence against him was coerced. Because it turns what is supposedly a practical test, "one designed to assist the court in determining whether or not the confession was voluntary," (People v. Jennings, 11 Ill.2d 610), into an inflexible rule, and because it virtually nullifies the exception which excuses the presence of witnesses when it is not possible or feasible for them to testify, I cannot join that opinion.
The complaining witness, Carlos Martinez, testified that Anthony Dale and an unidentified companion beat and robbed him in the early morning hours of April 5, 1957. The defendant was captured after fleeing the scene and questioned at the station by police officers Harte and Mulvey. Some forty minutes later defendant confessed the robbery, although he claimed that he was only a "lookout" for two other men named Pete and Ralph.
Dale did not put the People on notice that he would challenge the voluntariness of his confession by requesting a pretrial hearing on that issue. Instead, he waited until after Harte testified on direct examination that he had admitted, first in an oral statement, and then in a signed confession, that he had participated in the robbery. When the People ...