The People v. Townsend

Mr. Justice Schaefer, dissenting:

In this case the confession was taken under circumstances that, in my opinion, make it inadmissible. And I think that the evidence relied upon by way of corroboration is totally insufficient.

The confession was taken from the defendant when he was, in the words of the police department doctor, “a narcotic addict, suffering from acute withdrawal” and shortly after the doctor had administered phenobarbital and hyoscine to relieve his pain and produce calm and body quiet, “because he needed rest.” Admittedly the drug was designed to and did operate on the mind of the defendant. A professor of pharmacology and toxicology in the school of medicine at Loyola University testified that the drugs administered, even in the quantities that the police department doctor said he used, would produce amnesia.

In justifying the admission of the confession, the majority rely on cases involving intoxicated persons. In none of them, however, was the intoxication induced by the police. Here we are dealing with a confession taken while the defendant was under the influence of a drug administered by a police department doctor to a defendant in police custody. In my opinion a conviction based upon a confession taken under these circumstances violates due process of law.

So much for the confession. As to corroboration, there is first the testimony of Vincent Campbell. He was arrested December 29, 1953. While still in police custody, at 2:3o A.M. on January 1, 1954, he was taken by police officers to Thirty-fifth Street and Indiana Avenue where he pointed out the defendant to the officers who then arrested defendant. At the trial Campbell testified that on an unspecified date in December, 1953, he saw the defendant carrying a house brick and that three or four hours later he saw the defendant enter a pool room and lay down a bag containing a brick. As the majority points out, “Campbell informed on the defendant to obtain his own release from custody.” If the purpose of his testimony was not to put a brick in the defendant’s hand during the time that this crime was committed, it was irrelevant. But for that purpose it was inherently incredible. It requires us to believe that defendant started out to commit an assault with a common house brick and that after committing the ciime he carefully wrapped up and preserved the brick.

The majority also relies for corroboration on the circumstance that the deceased’s wallet, was found by a boy in a hallway on Thirty-seventh Place on December 19, and that the police did not know it had been found until it was produced before the grand jury by the deceased’s wife on January 5, 1954. But there is no testimony as to when the police learned of the finding of the wallet. Defendant’s confession itself shows that the police knew on January 1 where the wallet had been found. The pertinent questions and answers are:

“Q. What did you do with the wallet?

A. Threw it in the hallway near an alley on 37th Street.

O. Was it 37th Street or 37th Place?

A. 37th Place.”

I think that the judgment should be reversed and the cause remanded for a new trial.

KeingbiEE, C.J., concurs in the foregoing dissenting opinion.