From LaGrange Circuit Court, Winslow Van Horne, Special Judge.
Jackson, J. Hunter and Mote, JJ. concur; Lewis, C.j. concurs in result; Arterburn, J. Dissents.
This is an appeal from a conviction of murder in the second degree.
The record in this case is so voluminous, consisting of two volumes of transcript and eight briefs, that only the bare essentials necessary for consideration in this appeal can be touched upon.
Appellant, who at the time was seventeen years of age, was arrested on April 15, 1963 at the home of his parents in South Bend, Indiana. The arrest was made about 10:30 at night, without warrant, by two uniformed policemen who immediately took appellant to the police station. Appellant was interrogated by the officers concerning the murder of Anna Marie Yocum. He was not advised of his constitutional rights, was refused the right to call an attorney or consult with his father, was told to "lift his hand" and was given a paraffin test. The interrogation continued until 2:30 the morning of April 16, 1963, when he was taken to the desk and booked. He was also required to empty his pockets and was searched. He was then placed in a cell and held there until Tuesday morning, April 16, 1963, then taken to an interrogation room and questioned until about 10:00 when the police took him and two other boys to a room at Memorial Hospital where a man was lying in bed. One of the police officers asked the man in bed if he recognized any of them. Appellant was then taken back to the police station where the interrogation continued until about midnight on the 16th. He was then taken back to the lockup where he had been the night before. All during this time the only thing the police talked to him about was murder. On Wednesday, April 17, 1963, about 8:00 o'clock he was taken from the lockup to the interrogation room where he was again continually questioned about the murder of Anna Marie Yocum. During the interrogation that afternoon he was told his Dad's gun was used in the shooting and unless he confessed his Dad would go to prison or even the electric chair for something he didn't do. Appellant was scared and asked the police what they wanted.
They said to write something. He wrote a note to his father dictated by the police. All he remembered of it was "I confess my crime". The police told him to write a note to Cammy Swift. They dictated the note or letter and kept it. On Wednesday the police interrogated him about the gun. Finally, one of the police officers grabbed him by the shirt, called him a s.o.b. and said he wanted to know where the damn gun was. Appellant then told them. The officers took him in a squad car to the cemetery, arriving about 6:00 p.m. where appellant dug up the gun. They took pictures of him digging for the gun and then had him hold it. They then took more pictures and took him back to the police station. On the return to the police station the interrogation continued. His father came about 7:00 p.m. Both were crying. Appellant told his father in Polish that he confessed and it wasn't true. The police wanted appellant to sign a typewritten statement, but he refused. About 10:00 o'clock that night they put him back in his cell.
About 7:00 a.m. on Thursday, April 18, 1963, appellant got up and was served breakfast. About 8:00 a.m. he was taken to an interrogation room where the police again attempted to get him to sign a typewritten statement. Appellant refused. About 9:30 officer Hampton and attorney William Plowdowski walked in. The attorney asked Hampton not to talk to appellant any more and asked when appellant would be arraigned. Hampton said maybe tomorrow, and the attorney asked the officer not to bring appellant into court without notifying him first. Hampton assured the attorney no more police officers would talk to appellant and he would be notified when appellant would be brought into court. Appellant talked to his attorney about fifteen minutes, and the attorney then left. Then a police officer, not in uniform, came in and for about an hour tried to get appellant to sign a statement. At about 11:00 he was taken to city court. Appellant asked the police officer if his attorney had been notified, and he said they were not required to run errands for lawyers. The attorney
came in and complained he should have been notified if appellant was to be brought into court and also told the officer he shouldn't have questioned appellant. Appellant's case was called. He was charged with first degree murder, pleaded not guilty. Up until his appearance in city court on Thursday no charge had been filed against appellant nor any warrant served on him. He had not been advised of his right to counsel, to remain silent, to have an opportunity to consult with his parents or other friendly adults, to be brought before a magistrate without delay, all of which were here flagrantly violated by the police.
On April 24, 1963, the indictment on which appellant was tried was returned. Said indictment reads as follows:
"The Grand Jurors of the St. Joseph Circuit Court in and for St. Joseph County, State of Indiana, for the February Term, 1963, A.D. upon their oath do present:
That on or about the 15th day of April, 1963, A.D., at and in the County of St. Joseph, State of Indiana, one ROBERT JOHN DOWLUT did then and there unlawfully, feloniously, purposely and with premeditated malice, kill and murder one Anna Marie Yocum, by then and there unlawfully, deliberately, feloniously, voluntarily, purposely and with premeditated malice, shooting at and against the said Anna Marie Yocum, who was then and there at 917 West Washington Avenue in the City of South Bend, County and State aforesaid, with a certain deadly weapon, to-wit: a British Webley .45 Caliber revolver, which was then and there loaded with gunpowder and bullets, and thereby inflicted a mortal wound upon the said Anna Marie Yocum, of which mortal wound the said Anna Marie Yocum then and there died, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana."
Upon the return of the above indictment a warrant for the arrest of appellant was issued and served upon appellant.
Appellant indicated he desired to file a Motion to Suppress Evidence. The court fixed September 21, 1964, at 9:30 a.m. as the time for filing and hearing thereon; and, the cause being at issue, the court set the same for trial, by jury,
Tuesday, October 13, 1964, at 9:30 a.m. Thereafter, appellant specifically waived the right to a public hearing on the above motion and requested that the hearing thereon be held in private. The cause was submitted to the court for hearing. Evidence was heard, and during the hearing appellant filed his motion to produce written evidence relative to a search warrant alleged to have been issued in St. Joseph County, Indiana, for the home of Donald and Olga Dowlut, which search warrant, among other things, requested the officer to search for an alleged gun. The court heard the evidence thereon and overruled appellant's motion. Thereafter, during the course of the hearing, the appellant again filed a written motion to require the ...