46 So. 529 | Miss. | 1908
delivered the opinion of the court.
The defendant in this case was compelled to put his foot in a track found near the place where the crime is alleged to have been committed, for the purpose of identifying him, and this is
Learned counsel for the appellant cite a few cases from Georgia, Tennessee, and North Carolina in support of their view, amongst others the case of State v. Jacobs, 50 N. C., 259, decided in 1858; but that case was practically overruled in State v. Graham, 74 N. C., 646, 21 Am. Rep., 493, decided in 1876, wherein the court said: “The object of all evidence is to elicit the truth. Confessions which are not voluntary, but are made either under the fear of punishment if they are not made or in the hope of escaping punishment if they are made, are not received as evidence, because experience shows that they are liable to be influenced by those motives, and cannot be relied on as guides to the truth. But this objection will not apply to evidence of the sort before us. No fears or hopes of the prisoner could produce the resemblance of his track to that found in the cornfield. This resemblance was a fact calculated to aid the jury and fit for their consideration. Evidence of this sort is called by the civilians ‘real evidence,’ is always admissible, and is of greater or less value according to the circumstances. In Best on Evidence, § 183, the following instances of its value are given: ‘In a ease of burglary, where the thief gained admittance into the house by opening the window with a penknife, which was broken in the attempt and a part of the blade left sticking in the window frame, a broken knife, the fragment of which corresponded with that in the frame, was found in the pocket of the prisoner. So,
Mr. Wigmore announces what we prefer as the correct ruling in §§ 2265 and 2266 of the third volume of his work on Evidence, including the notes to both said sections. In §§ 2265 and 2266 he states the principle thus:
“§ 2265. Bodily Bxhibition. — If an accused person were to refuse to be removed from the jail to the court room for trial, claiming that he w>as privileged not to expose his features to the witnesses for identification, it is not difficult to conceive the judicial reception which would be given to such a claim. And yet no less a claim is the logical consequence of the argument that has been freqently offered and occasionally sanctioned in applying the privilege to proof of the bodily features of the accused. The limit of the privilege is a plain one. From the general principle (ante § 2263) it results that an inspection of the bodily features by the tribunal or by witnesses cannot violate the privilege, because it does not call upon the accused as a witness, i. e.r upon his testimonial responsibility. That he may in such cases be required sometimes to exercise muscular action — as when he is required to take off his shoes or roll up his sleeve — is immaterial, unless all bodily action were synonymous with testimonial utterance; for, as already observed (ante, § 2263), not compulsion alone is the component idea of the privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but his body itself. Unless some at*872 tempt is made to secure a communication, written or oral, upon which reliance is to be placed as'involving his consciousness of the facts and the operations of his mind in expressing it, the demaud made upon him is not a testimonial one. Both principle and practical good sense forbid any larger interpretation of tbe privilege in this application and healthy judicial opinion bas frequently pointed this out with force. Of the cases which thus fall within the privilege, those of requiring an utterance of voice for identification, or an inscription of handwriting to be used, or of pointing out places or articles (tbe act of pointing out being offered as an admission), áre perhaps safely within the line of protection. The use of the accused’s utterances for forming a witness’ opinion as to sanity is a dubitable case only when compulsion has been resorted to. The remaining instances are for the most part clearly without the privilege, although courts vary much in tbe strictness of their interpretation. It is not always noted that the compulsion, to come within the present principle, must be by process of law, or its eqivalent, for tbe purpose of obtaining testimony — a distinction to be further examined (post, § 2266). The tendency today, almost everywhere, is against the loose extension of the privilege, by way of just reaction against an inclination at one time exhibited to the contrary. That the doubt is entirely one of the present generation shows how alien it is to the orthodox spirit of the privilege. It will one day be incredible that judges could have descended as far as they sometimes have here gone on the road to logical absurdity.
“§ 2266. Confessions and the Self-Crimination Privilege, Distinguished. — The rule excluding untrustworthy confessions and tbe rule giving a privilege against compulsory testimonial self-crimination are sometimes mot kept plainly apart, and naturally enough, for not only have they tbe common feature of an acknowledgment of guilty facts, but also, by tbe test frequently employed (ante, § 826), the test of voluntariness for confessions becomes almost identical with the idea of compulsion as forbidden by the privilege. Judicial expressions which blend the two*873 into one principle might therefore sometimes be expected. But "this confusion is radically erroneous, both in history, principle, and practice. That the history of the two principles is wide ■apart, differing by one hundred years in origin, and derived through separate lines of precedents, appears sufficiently from a survey of the two histories as already set forth {ante, §§ 818, 2250). If the privilege fully established by 1680 had sufficed for both classes of cases, there would have been no need in 1780 for creating the distinct rule about confessions. So far as concerns principle the two doctrines have not the same boundaries; i. e. the privilege covers only statements made in court under process as a witness and the confession rule covers statements made out of court, but may also, overlapping, cover statements made in court. Finally, in regard to practical effects, the •conceded differences become material: (a)‘ The confession rule is broader, because it may exclude statements which are obtained without compulsion, (b) Where the privilege is waived or not claimed, the confession rule may still operate to exclude, (c) Where the privilege is nullified by statute (as it may be in ' England, and has been by the English bankruptcy act), the confession rule may still operate, (d) Where the testimony, though given under oath, does not violate the confession rule, it may still involve a violation of the privilege, (e) The privilege applies to witnesses as such, in civil and in criminal cases; but the confession rule is concerned only with party defendants in criminal eases, (f) A party defendant is protected by the •confession rule against the use of his own statements only; but the privilege is applicable also to witnesses during his trial, and it is by some maintained that he may object to the use against him of testimony extracted by a violation of the witness’ privilege. No doubt other situations may be conceived in which the two principles operate with entire independence. Nothing but subversion of principle and confusion of practical rules can result from an attempt to predicate an analogy and relationship. The sole relationship is found in the general spirit of protection*874 and caution which our legal system shows towards an accused. But this spirit is equally responsible for the rule about reasonable doubt, the rule about corpus delicti, the rule about lists of witnesses, and several others peculiar to criminal cases; and there is no more reason for linking the privilege with the one than with the others. There is, indeed, less reason, since the privilege is intended as well for witnesses as for parties defendant.”
In the case of U. S. v. Cross, 20 D. C., at page 382, in which the court admitted measurements' of the defendant made in the marshal’s office, the court, amongst other things, said: “It could not be contended that the knowledge of the size or height of a man acquired in any other way — for instance, by a tailor — could not be used when at the time it was taken for the purpose of being used ab testimony; and it seems to us that a record taken as this was, for a lawful purpose and under the rules of the office, might be made use of afterwards. It does not seem to us that it is compelling the defendant to give evidence against himself, although some cases that have been cited to us go very far in that direction. It was held in another case that where the officer compelled the defendant to put his foot in certain tracks that were- discovered, in order to identify him, that was wrong, as it was compelling him to give evidence against himself, and evidence of that kind, so secured, could not be used. We think that is going very far. It is rather too fine. What would be the consequence if such evidence should be entirely excluded % Ton could not compel a person after his arrest to empty his pockets and disclose a weapon, when the most vital evidence on the part of the government, in a homicide case, is the possession of the deadly weapon. Could you not compel him to open his pocketbook and exhibit papers that might be conclusive in the case of forgery, or anything of that sort % We think that officers having a prisoner in custody have a right to acquire information about him, even by force, and that, for example, when his photograph is taken, or his measurement taken, it is simply the act of the
In note 3 to § 2265, to be found on pages 3130 and 3131 of Wigmore on Evidence (third volume), is to be found a very complete list of the authorities pro and con on this subject. We refer to just a few of them. In California, in 1888, in People v. Goldenson, 76 Cal., 347, 19 Pac., 161, it was held proper to compel a defendant to stand up before the jury for identification. And a defendant was held properly compellable to stand up for identification as to size in People v. Oliveria, 127 Cal., 376, 59 Pac., 772. To the same effect is State v. Reasby, 100 Iowa, 231, 69 N. W. 451, and State v. Prudhomme, decided in 1873, 25 La. Ann., 522. In State v. Tettaton, decided in 1900, 159 Mo., 354, 60 S. W., 743, testimony of physicians to the condition of a wound on defendant’s head, shaved by compulsion, was held admissible. In People v. Gardner, 144 N. Y., 119, 38 N. E., 1003, 28 L. R. A., 699, 43 Am. St. Rep., 741, decided in 1894, defendant was held compellable to stand up in court for identification. The same principle is announced in People v. Van Wormer, 175 N. Y., 188, 67 N. E., 299, decided in 1903, where it was held that taking the defendants’ shoes from them and placing the shoes in foot-marks, was proper. See, also, Lipes v. State, 15 Lea (Tenn.), 125, 54 Am. Rep., 402, decided in 1885. The same principle is announced in Benson v. State (Tex. Cr. App.), 69 S. W., 165, decided in 1902. And the same principle is again announced in Thornton v. State, 117 Wis., 338, 93 N. W., 1107, 98 Am. St. Rep., 924, decided in 1903. The distinction between the rule excluding confessions obtained by force and the exclusion of mere bodily exhibitions of the defendant, under compulsion, for the purpose of identification, is very clearly pointed out by Wigmore in the section above quoted — § 2266 of volume 3 of his work. Whatever may have been the holding in some earlier cases, we are thoroughly satisfied that the true view is that set out in volume 3, § 2265 of W’igmore on Evidence.
The judgment is affirmed.