Thе defendant has appealed from a judgment of the Magistrates’ Court whereby she was found guilty of the offense of disorderly conduct in violation of subdivision 2 of section 1458 of the Consolidation Act, and pursuant to which she was sentenced to the workhouse for an indeterminate period not to exceed two years, in accordance with the provisions of section 4
It is conceded that the evidence substantiated the charge of soliciting, of which the defendant was fоund guilty, and the assignments of error are upon the ground that the act does not accord due process of law to a person accused, that proper notice was not given to the defendant of the charge made against her, that error was committed after the defendant had been found guilty in requiring that her finger prints be taken and their receipt in evidence, and that the defendant was improperly sentenced under the Parole Board Act.
That portion of chapter 287 of the Laws of 1916 (Parole Board Act) pertaining to this case is as follows: “ that no person conviсted in any of said cities of vagrancy, disorderly conduct tending to a breach of the peace, public prostitution, soliciting on the streets or public places for the purpose of prostitution, or the violation of section one hundred and fifty of chapter ninety-nine of .the laws of 1909, as amended, shall be sentenced to any such workhouse for a definite term until the finger print records of the city magistrates’ courts of said city are officially searched with reference to the particular defendant and the results thereof duly certified to the court; and provided, further, that if it shall appear to the court at any stage of the proceeding prior to the imposition of sentence and after due notice and opportunity to the defendant to be heard in opposition to such accusation of prior convictions that any person convicted of any or each of these offenses last enumerated has been convicted of any or each of these offenses two or more times during the twenty-four months just previous, or three or more times previous to that conviction, thei^the court shall sentence such offender to a wоrkhouse of the said department of correction in said city for an indeterminate period. The' term of imprisonment of any person convicted and sentenced to any
The constitutionality of the act and the sufficiency of the notice have been established in recent decisions in this department. (People ex rel. Berger v. Warden of Workhouse,
The defendant in the case at bar was arraigned for trial and the court made the following statement: “ The offense that you are charged with is one of those mentioned in section 4 of chapter 579 of the Laws of 1915, commonly known as the Parole Board Act, as amended by chapter 287 of the Laws of 1916. In the event that you have been heretofore convicted of any of the offenses mentioned in that law two or more times during the twenty-four months last past or three or more times altоgether, and you are convicted of the offense that you are now charged with, you may be imprisoned in the workhouse under the provisions of that law for an indeterminate period which shall not exceed two years.” The court then proceeded with the trial. At the conclusion of the case the court said: “ I find the defendant guilty and order her to have her finger prints
The finger prints were properly identified and introduced by •
It is contended, however, that hy requiring the defendant to have her finger prints taken and the receipt in evidence of such finger prints she was thereby required in violation of her constitutional rights to be a witness against herself in a criminal case.
The evidence was received “ in a criminal case.” Although thе inquiry concerning the previous conviction was to enable the magistrate to determine what sentence should be imposed, the case was not closed. As the parole law requires the imposition of a sentence in the case of frequent offenders which may be more severe than that for first offenders, it was not only necessary to give notice that the defendant was charged as a frequent offender but also to substantiate the charge by competent proof of the prior convictions. (People v. Sickles,
Before examining the authorities which by analogy are pertinent, the origin and nature of finger prints will be considered.
Scientific authority declares that finger prints are reliable as a means of identification. (10 Ency. Brit. [11th ed.] 376.) The first recorded finger prints were used as a manual seal to give a personal mark of authenticity to documents. Such prints are found in the Assyrian clay tablets in the British Museum. Finger prints were first used to record the identity of individuals officially by Sir William Herschel, in Bengal, to check forgeries by natives in Indiа in 1858. (C. Ainsworth Mitchell, in “ Science and the Criminal,” 1911, p. 51.) Finger print records have been constantly used as a basis of information for the courts since Sir Francis Gralton proved that the papillary ridges which cover the inner surface of the hands and the soles of the feet form patterns, the main details of which remain the
The talcing of finger prints is a very simple process. A thin layer of ink is spread upon the tips of the fingers, which are then placed upon a sheet of paper, making an impression of the pattern of the surface of the skin, composed of a multitdue of lines or ridges, which, it has been ascertained by experinece, are not alike in any two hands.
The constitutional rights of a defendant should be carefully safeguarded. It is of the utmost importance to the liberties of the people that no form of cruelty or of unlawful physical compulsion should be permittеd, neither should a defendant be required out of his own mouth to give testimony against himself. Stoby, in his great work on the Constitution, at section 1788, says: “This is also but an affirmance of a common-law privilege. But it is of inestimable value. It is well known that in some countries not only are criminals compelled to give evidence against themselves, but are subjected, to the rack and torture in order to procure a confession of guilt. And, what is worse, it has been (as if in mockery or scorn) attempted to excuse or justify it, upon the score of mercy and humanity to the accused. It has been contrived, it is pretended, thаt innocence should manifest itself by a stout resistance, or guilt by plain confession; as if a man’s innocence were to be tried by the hardness of his constitution, and his guilt by the sensibility of his nerves.” And the Supreme Court of the United States has stated the origin of the prohibition in Brown v. Walker (
It has, however, been frequently held that a defendant may be required to permit examination and even to do certain acts for the purpose of enabling the court and jury to ascertain whether a defendant before them is or is not the person in question.
The admission in evidence of the fact that certain conditions exist, which fact has been ascertained by a reasonable examination of the defendant that requires no torture for its ascertainment and no act of volition on the part of the defendant, is not a violation of the defendant’s constitutional privilege. Wig-more, in his Treatise on Evidence (Vol. 3, § 2263), states the principle as follows: “ Looking back at the history of the privilege (ante, § 2250) and the spirit of the struggle by which its establishment came about, the object of the protection seems plain. It is the employment of legal process to extract from the person’s own lips an admission of his guilt, which will thus take the place of other evidence. * * * In other words, it is not merely compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion. The one idea is as essential as the other.” And at section 2265 he further statеs: “ Erom 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., 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 the testimonial utterances; 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.
In State v. Ah Chuey (
“ Rone of the many reasons urged against the rack or torture or against the rules compelling a man 1 to be a witness against himself ’ can be urged against the act of compelling a defendant, upon a criminal trial, to bare his arm in the presence of the jury so as to enable them to discover whether оr not a certain mark-could be seen imprinted thereon. Such an examination could not, in the very nature of things, lead to a falsehood. In fact, its only object is to discover the truth; and it would be a
In State v. Prudhomme (
It has been held also that testimony concerning the mental and physical condition of the defendant, ascertained upon examination to which the defendant has been required to submit, is admissible. (People v. Kemmler,
It has also been held in other jurisdictions that evidence as to whether or not the defendant had scars or wounds is admissible, although the examination of the defendant was made while he was in. jail and against his- objection. (State v. Tettaton,
The courts have also frequently affirmed the power to take, preserve and make reasonable use of data for the identification of persons accused of crime. In People v. Van Wormer (
In Shaffer v. United States (24 App. Ct. [D. C.] 417), it was held that the taking of a photograph of the defendant against his will and its use in evidence upon the trial was lawful. Alvey, J., said: “ In talcing and using the photographic picture there was no violation of any constitutional right. There is no pretense that there was an excessive force or illegal duress employed by the officer in taking the picture. We know that it is the daily practice of the police officers and detectives of crime to use photogrаphic pictures for the discovery and identification of criminals, and that without such means many criminals would escape detection or identification. It could as well be contended that a prisoner could lawfully refuse to uncover himself, or to remove a mask in court to enable witnesses to identify him as the party accused, as that he could rightfully refuse to allow an officer in whose custody he remained to set an instrument and take his likeness for the purpose of proof and identification. It is one of the usual means employed in the police service of the country, аnd it would be a matter of regret to have its use unduly restricted upon any fanciful theory of constitutional privilege.”
A case peculiarly in point is United States v. Cross (20 D. C. 365, 382), in which the prisoner’s measurements were taken and introduced in evidence. Judge Cox, at page 382, says: “ 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 measurements
In all these acts, inasmuch as the defendant was required merely to remain passive, it was held that there was no element of torture. On the other hand, it has been held that it was a violation of the constitutional right of the defendant to require him to write his name, such act calling for volition before it can be accomplished. The placing of the pen in the hand of the defendant will not produce the signature, and therefore if force is used to produce volition on the part of the defendant it would be in the nature of torture. Counselman v. Hitchcock,cited by the defendant, is a case in which the defendant was forced against his will to answer questions, which required volition.
The cases of Boyd v. United States (
The cases cited in which it was held that the defendant’s constitutional rights were not violated are not distinguishable in principle from the case before me. They include not only cases in which the defendant has been required to show his features.or disclose marks upon his person in open- court, but also cases in which the defendant has been required to permit examination to be made out of court concerning his physical condition as a basis for testimony subsequently given in court by the observers, and finally cases in which, under compulsion,
It has always, at common law and in the practice prevailing under the Constitution and laws- of our State, been permissible to put in evidence for the purpose of identification of the defendant testimony as to his personal appearance, his hair, his eyes, his complexion, marks, scars, teeth, his hands, and the like. Finger prints are but the tracings of physical characteristics or the lines upon the fingers. Ho thing further is required in finger printing than has been sustained heretofore by the courts in making proof of identification. The steps are to exhibit the fingers of the hands and to permit a record of their impressions to be taken. The requirement that the defendant’s finger prints be taken for the purpose of establishing identity is not objectionable in principle. There is neither torture nor volition nor chance of error. The defendant is required to allow another to make observation and record. Torture is defined as “ the act of inflicting severe pain as a means of persuasion.” (Cent. Diet.) Finger printing is entirely harmless and it is not done as a means of persuasion. There is no claim that any excessive force or improper duress was used in taking the finger prints.
Ho volition, that is no act of willing, on the part of the mind of the defendant is required. Finger prints of an unconscious person or even of a dead person are as accurate as are those of the living. It is reported that by finger prints bodies have been identified by the bureau of unidentified dead of the New York City Police Department. (N. Y. City Mag. Ct. Rep. 1915.)
By the requirement that the defendant’s finger prints be taken, there is no danger that the defendant will be required to givе false testimony. The witness does not testify — the physical facts speak for themselves; no fears, no hopes, no will of the prisoner to falsify or to exaggerate could produce or create
The taking of finger prints is not a violation of the spirit or purpose of the constitutional inhibition. “ The scope of the privilege, in history and in principle,” says Grreenleaf, “includes only the process of testifying, by word of mouth or in writing, i. the process of disclosure by utterance. It has no application to such physical, evidential circumstances as may exist on the witness’ body or about his person.” (Vol. 1 [16th ed.], § 469e.) It would be a forced construction to hold that by finger printing the defendant was required to furnish evidence against herself. Such is not the case. The defendant was already in the case. The court merely makes inquiry by physical examination and records the same as to her identity while it detains her. It might as well be urged that by her arrest the defendant was deprived of her constitutional rights because her body is produced before the court.
Both upon sound reason and upon the authority of analogous cases I am of opinion that the taking of the defendant’s finger prints and their introduction in evidence was not a violation of the Constitution of this State. The proof was not the defendant’s proof. She was not called as a witness. It was proof by a competent witness based upon the record of this examination of the defendant. The constitutional inhibition, in my opinion, has reference to testimonial utterances by the defendant and may not be used to prevent the establishment of the truth as to the existence or non-existence of certain marks of identity upon the defendant’s fingers from which the record of her former convictions may be ascertained.
Judgment of conviction affirmed.