Defendant appeals his convictions of two counts of first degree forgery. OCGA § 16-9-1.
1. The first enumeration of error is that the trial court erred in permitting the State to use as a handwriting exemplar defendant’s signature which was requested when he was fingerprinted.
According to the officer who booked defendant, he told defendant he needed defendant’s fingerprints. He then testified: “I marked down the x’s on the fingerprint card where I needed him to sign it. He signed it. I signed it. And I went ahead and fingerprinted him.” Defendant had not been given the
Miranda (Miranda v. Arizona,
There is no indication that requiring the signing of the card was for any purpose other than as part of the administrative processing when defendant was booked. Nonetheless, the State ultimately decided to use the signature on the fingerprint card for comparison by *685 an expert with the signatures on the checks allegedly forged.
Appellant relies exclusively on the State Constitution and cases construing it.
Art. I, Sec. I, Par. XVI, 1983 Ga. Const, provides: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” In essentially the same character this right has been a part of the body of our constitutional law since 1861. It arises from the same roots as a provision in the Fifth Amendment to the United States Constitution. See the dissent of Justice Gunter in
Creamer v. State,
While the language of the Fifth Amendment has long been confined to “testimony,” our provision prohibits the State from compelling the individual to affirmatively produce any evidence, oral or real, physical or by action.
Creamer v. State,
supra at 516 says it means “all kinds of evidence ... all types of evidence.” See also
Johnson v. State,
We must consider the circumstances in which the affixing of the signature which was later used to convict, occurred. In this instance, the focus is on two aspects of the occurrence.
a) One is that Hudson was not being compelled to give evidence against himself. Instead, he was being “compelled,” if that characterization should be attached to the request of the deputy sheriff under the circumstances of defendant being under arrest and in the booking process, to sign the fingerprint card so as to directly verify and record as fact the identification of the fingerprints as Billy Ray Hudson’s. The purpose was to provide near-conclusive proof later, for administrative purposes, that this is the person who was arrested and booked.
Thus the
purpose
of obtaining the arrestee’s signature was not evidence-gathering or investigatory but was quite another, a routine administrative purpose. Evidence to prove crime was not being sought. Hudson was not being requested “to perform an act resulting in production of incriminating evidence, . . . [which] produces inad
*686
missible evidence” as pointed out in
Wessels v. State,
The fact that the signature was later
used
as evidence against defendant does not tarnish its original innocent purpose, absent evidence of subterfuge. Of that there is no indication. In fact, the evidence is that the State did not even conceive of using the fingerprint card signature for comparison until after its efforts to locate other known handwriting had failed. As stated in
Day v. State,
Simply put, Hudson was not being requested to furnish something which was contemplated to be used as evidence of crime, but was instead being requested to record the identification of his fingerprints by way of writing his signature on the fingerprint card, as part of the standard booking procedure. It was not done to “further the prosecution,” in words found in
Meriwether v. State,
The constitutional bar is that “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” When scrutinizing the particular evidence claimed to have been unconstitutionally obtained, the law looks not only at whether it was compelled, whether the defendant gave it or it was instead simply taken from him, who did the compelling, and whether the evidence was self-incriminating, but it also looks at whether what was obtained was evidence.
The State cannot demand it of defendant by court order, as part of its evidence-gathering function, when it has charged that person with crime.
State v. Armstead,
Just as not all compelled evidence is prohibited, depending on who is doing the compelling (the assistant principal in State v. J. T., supra), so not all matter emanating from an act of defendant and later used in evidence constitutes what would be classified as “evidence of crime” when it is being originated.
Obviously, a person’s own signature would be “self-incriminating” by its very nature, if it links defendant to the crime charged. A forgery case, as here, could rarely if ever be proved without a known handwriting of the defendant, created somewhere, at some time, by himself. Thus, whether it is within the prohibited species of self-incriminating acts depends on the circumstances under which it occurs.
Since at the time and under the circumstances in which the signature was given, it did not constitute “evidence” against defendant, its later use as evidence was not precluded. In so holding, we do no disservice to the meaning of the constitutional provision.
b) This brings us to the second aspect of importance here, the question of compulsion.
“It has . . . frequently been held that where a person after arrest does not act voluntarily or without objection which tends to incriminate himself it is not error or unconstitutional to allow evidence of the act in the trial of the case.
Whippier
[v.
State,
Examples where the state constitutional prohibition against compelled self-incrimination was violated include: compelling a suspect to hand over lottery tickets,
Grant v. State,
We are reminded of the admonition found in Underwood v. State, supra: “ ‘Courts should liberally construe the constitutional provisions against compelling the accused to be a witness against himself, and refuse to permit any first or doubtful steps which may invade his rights in this respect.’ ” Our courts in applying the constitution as construed have found compulsion where the accused was under the illegal control of the State.
In
Marshall v. State,
Quoting
Raif v. State,
supra, it was stated in
Holtzendorf v. State,
On the other hand, the fact that defendant is under arrest or in the imminent presence of a number of law enforcement officers does not demand a finding that his consent or actions were as a matter of law involuntary.
Noland v. State,
The question presented based upon the evidence is whether there was sufficient coercive effect in obtaining defendant’s signature so that use of his writing as exemplar violated the State constitutional prohibition against self-incrimination. No question exists as to the legality of the arrest or that, in fact, the signature was obtained as part of the routine administrative procedure at the jail. Defendant did not protest nor did he give any indication that he did not desire to sign the document. There is nothing to establish that the State used the process as a subterfuge to gain a sample of his handwriting or even at that time intended to use his signature for anything other than to verify on the card that the prints on the same card were his.
Just because the creation of the act is instigated or initiated by a person other than defendant himself does not automatically make it “compelled,” any more than undercover involvement in drug buying is per se entrapment. Nor, as appellant urges, does the absence of the Miranda-enumerated warnings when the arrestee is asked to sign the *689 fingerprint card in accordance with standard administrative identification procedure constitute compulsion within the meaning of the state constitution. That is, the failure to give such warnings does not render compelled the giving of the signature. For one thing, these warnings expressly relate to statements, not acts.
In these circumstances, although defendant was under arrest at the time his signature was obtained, we conclude that defendant was not compelled to incriminate himself within the meaning of our constitutional provision. This is particularly true where the defendant’s act was not in an evidence-gathering context.
2. Defendant contends that the evidence did not sustain his conviction under count 1 of the indictment because there was no eyewitness testimony that defendant uttered the check.
“Uttering or delivering the writing is an essential element of forgery in the first degree whereas it is not an element of the lesser degree of forgery [forgery in the second degree—OCGA § 16-9-2].”
Ward v. State,
There was no direct testimony that defendant uttered the check which was the subject of count 1 of the indictment. In
McGowan v. State,
“Forgery, like fraud or any other fact, may be proved by circumstantial evidence.”
Stow v. Hargrove,
3. Defendant asserts the trial court failed to properly inform the jury of its possible verdicts because it only discussed the facts pertinent to count 1 and neglected to discuss those associated with count 2. While the portion of the charge referred to in defendant’s brief does indeed appear limited to count 1, an examination of the charge as a whole reveals that it did not confuse the jury as to the effect of each count or render them indistinguishable. In determining the correctness of an isolated excerpt of instructions given in criminal proceedings, the charge as a whole must be considered.
Moses v. State,
Judgment affirmed.