The opinion
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 subsequently sought to introduce the written confession in evidence the following occurred:
“The Court: Any objection? Is there any objection?
Mr. Stein (defendant’s attorney) : Yes, your Honor.
The Court : What is the basis of your objection?
Mr. Stein : We would show that the statement was coerced.
The Court : You haven’t shown it so far.
Mr. Stein : I don’t see how I can in the State’s case.
The Court : Then it goes in subject to your proof it was obtained by force or promise. The objection is overruled. People’s Exhibit 1 is admitted into evidence.” Testifying in his own behalf, Dale denied participating
in the robbery and claimed that after he arrived at the station Harte and Mulvey took him into a side room where he was beaten until he agreed to sign the statement.
In rebuttal, Harte denied Dale’s specific allegations of brutality on the part of both Mulvey and himself. After this testimony, the case was concluded without any further reference to the admission of the confession.
The trouble with the court’s opinion is that it not only applies the rule to reverse a case where the facts show a sufficient compliance, but it also ignores established precedent for not applying the rule at all.
The confession was admitted in evidence subject to defendant’s objection that it had been coerced. Specific allegations of coercion were met by specific denials by Harte who testified that neither he nor Mulvey, the only officers accused by defendant, beat Dale, and who also testified, on cross-examination, that Mulvey was “in another courtroom this morning in another building.” At no time after Harte’s testimony did defendant request the court to rule out the confession on the ground that Mulvey had not testified. He made no motion to strike the evidence as incompetent after it had been received subject to his objection. The record is convincing that the explanation of Mulvey’s absence was accepted by all parties and I can not, therefore, accept the court’s conclusion that “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.”
The majority opinion also ignores our rule, that in a bench trial it will be presumed the trial court rested its finding of guilty upon the competent evidence and ignored that which is incompetent. (People v. Grabowski, 12 Ill.2d 462 ; People v. Grodkiewicz, 16 Ill.2d 192 .) Here we have more than the presumption. The trial judge expressly found that Dale was not telling the truth, that the complainant, Martinez, “was a good witness and I followed him very carefully. Everything indicates you were there and participated. I don’t know whether there were two or three people. I would be inclined to think there were only two people and you zvere one of the two.” This finding corresponds with the testimony of Martinez, not the story told by the defendant in his confession, and belies the majority’s conclusion that the confession “could have easily influenced the trial court’s finding of guilty.” Even if it be assumed, therefore, that the confession was erroneously admitted, it does not follow that the conviction must be reversed.
To reach the result the majority does require the overruling of a case that is controlling here. In People v. Kraus, 395 Ill. 233 , the defendant was convicted of a crime against nature and sentenced to a term of five to seven years in the penitentiary. As in the present case, a confession taken by two police officers was admitted into evidence after one officer testified on direct examination concerning the circumstances surrounding the procurement of the confession, and testified on cross-examination that no brutality was practiced. And like the present case, the confession was admitted subject to proof that it had been coerced. Kraus testified that police brutality forced his confession, but the trial court did not change its ruling.
The conviction in Kraus was affirmed even though the court recognized that the rule requiring the testimony of all officers had been violated. We held that the competent evidence, including the testimony of the complainant, clearly established the corpus delicti and left no doubt of the defendant’s guilt. Here the testimony of Martinez, upon which the trial judge indicated he relied, amply proves defendant’s guilt.
I can not find that the rule of Kraus has ever been questioned by this court in later opinions. The most we have ever held is that a conviction containing the defect assumed by the court should be reversed where, in the absence of a confession, there is little, if any, evidence connecting the defendant with the crime, (People v. Sloss, 412 Ill. 61 ,) or where the case is very close on the facts. (People v. Davis, 399 Ill. 265 .) Clearly, that is not the state of this record. I do not understand, therefore, why the majority ignores the precedent of Kraus, and, by its opinion here, impliedly overrules it.
To reverse the conviction of Anthony Dale, the court has exalted a dictum first announced in an opinion which went to great lengths to excoriate police practices of an era which confirmed “a pre-conceived opinion of this court, or at least of several members thereof, that it has been the practice of the Chicago police in a number of cases to extort confessions.” (People v. Rogers, 303 Ill. 578 ). In so doing, the court forgets the principle recently set forth by Justice Frankfurter that “it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts.” Gomillion v. Lightfoot, (U.S.), 5 L. ed.2d 110, 29 U.S. Law Week 4024.
If the rule applied by the majority commands the reversal of this conviction, then I have grave doubts as to the wisdom and continuing validity of the rule. I dissent.
Mr. Justice Hersiiey joins in this dissent.