State v. Weltha ( 1940 )

I concur in the result reached, but think that the court should specifically overrule the opinion of this court in the case of State v. Tonn, 195 Iowa 94, 191 N.W. 530.

The rule announced in the Tonn case is contrary to the federal rule and the great weight of authority.

There were two dissenting opinions filed in the Tonn case. One by the then Chief Justice Preston and the other by one of the outstanding members of this court, Justice Weaver.

My views agree with Justice Weaver, and he has stated it far better than I could. I quote from his dissent [195 Iowa 94, 119, 191 N.W. 530, 540]:

"It seems little less than solemn mockery for us to protest our devotion to the ``sacred constitutional right,' or our virtuous purpose to rigidly enforce it, and in the same breath declare our approval of the admission of ``evidence without any inquiry as to how that evidence was obtained.' The principle so involved finds a suggestive parallel in the case of the candidate for office who maintains his equipoise on the question of prohibition by declaring himself in favor of the law, but opposed to its enforcement. The suggestion that the person whose rights are invaded by a wrongful search or seizure has his remedy in an action for damages against the individual committing the trespass is scarcely worthy of the court which refuses to give him the protection to which he is entitled under the charter which is supposed to command the obedience of the judiciary, as well as of the private citizen. It is this growing disregard of fundamental rights and orderly methods of justice which has given rise to the infamies of the so-called ``sweat-box' and ``third-degree' practices which cast discredit upon our professions of loyalty to law. The reasoning which justifies those things, and justifies a rule by which the court will refuse to inquire into the means employed to obtain evidence, if carried to its logical results, would be equally effective to admit evidence procured by physical torture, and restore the rack and thumbscrew to the dignity of judicial aids in the prosecution of alleged criminals. True, torture has been nominally outlawed in civilized lands, and the court would undoubtedly so declare, were that concrete question presented for its consideration; but the legal and constitutional guaranties of protection against the use of the torture chamber are not a whit less sacred than those which guarantee each and every citizen against illegal searches and seizures."

The argument in the majority opinion in the Tonn case, seemed to be based upon the theory that to hold the evidence inadmissible would hamper the prosecution of criminals. I too believe in law enforcement, but I do not think that in the name of law enforcement the rights guaranteed in the constitution to every individual even if he is charged with a crime, should be swept aside.

In the case at bar, the appellant was unconscious, lying on an operating table, and according to the doctor not even comforted by the presence of his kin, when the blood was taken from him. This is the evidence, yes, the sole evidence relied upon to sustain the conviction.

Evidence so obtained should not be admitted, and so that there would be no question about it, I would overrule the case of State v. Tonn.