Berve

Defendant, Nellard Berve, appeals from a judgment of conviction of murder in the second degree after a trial without a jury. His claim is that the coercive circumstances attending his confession rendered its use at the trial violative of the principles of due process of law, and accordingly his conviction must fall. For the reasons stated below we find this contention meritorious.

Defendant was alleged to have performed an abortion on one Mary M. Pettit. As a result of using unsterilized instruments an infection developed in Mrs. Pettit that could not be cured and subsequently caused her death. The evidence, excluding defendant's confession, tended to show that defendant performed the abortion. If believed, it would be sufficient to support a finding of guilt.

At the trial a confession made by the defendant was introduced into evidence over his objection that the confession was not voluntary. The objection was overruled and the confession was admitted.

The following uncontroverted circumstances surround the making of the confession.

Defendant was kidnaped at rifle point by Harry Pettit, the victim's husband. He was threatened with imminent death by a vengeful man…

I dissent.

In my opinion, a review of the entire record, including the testimony of Deputy Sheriff Peterson, corroborated by the statements of the defendant himself, shows that the evidence was sufficient to justify the court in finding, as it did, that the confession of defendant was free and voluntary. There can be no question of defendant’s guilt. I would affirm the judgment.

Shenk, J., and Spence, J., concurred.

Respondent’s petition for a rehearing was denied December 30, 1958. Shenk, J., Spence, J., and Me Comb, J., were of the opinion that the petition should be granted.

Defendant, Nellard Berve, appeals from a judgment of conviction of murder in the second degree after a trial without a jury. His claim is that the coercive circumstances attending his.confession rendered its use at the trial violative of the principles of due process of law, and accordingly his conviction must fall. For the reasons stated below we find this contention meritorious.

Defendant was alleged to have performed an abortion on one Mary M. Pettit. As a result of using unsterilized instruments an infection developed in Mrs. Pettit that could not be cured and subsequently caused her death. The evidence, excluding defendant’s confession, tended to show that defendant performed the abortion. If believed, it would be sufficient to support a finding of guilt.

At the trial a confession made by the defendant was introduced into evidence over his objection that the confession was not voluntary. The objection was overruled and the confession was admitted.

The following uneontroverted circumstances surround the making of the confession.

Defendant was kidnaped at rifle point by Harry Pettit, the *289 victim’s husband. He was threatened with imminent death by a vengeful man who…