State v. Griswold

67 Conn. 290 | Conn. | 1896

Lead Opinion

Andrews, C. J.

The defendant was tried to the jury upon ap information charging him with the crime of arson, and in another count with setting fire to the same building with the intent to defraud an insurance company. Among other testimony, the State offered evidence of certain acts done by the accused showing preparation for the fire, as well as his subsequent conduct apparently influenced by the fact that he had set the fire or had known that it was going to happen. To illustrate and explain this conduct, the State offered in evidence a small package consisting of the envelope with the marks upon it, and its contents, which are described in the finding. It is admitted — and the fact is so — that this package was in its nature pertinent and admissible to be laid before the jury, and in connection with it the other testimony in the case became highly incriminatory evidence against the accused. His counsel objected to its being shown in evidence. The counsel said this article ought not to be exhibited in evidence to the jury, because of the manner in which it was found in the room of the accused and taken therefrom by the police officers; that such taking and production in evidence was in violation of the eighth and ninth sections of article 1 of the Constitution of this State. When this objection was made the trial judge excused the jury, and in their absence proceeded himself to hear the evidence upon the question so raised. The accused testified and was cross-examined. Other witnesses were also heard, and upon the evidence so taken, the judge found that the office of the accused, at the time when this envelope was found by the police officers and taken away by them, was in the care and possession of one Butler, as the servant and agent of the accused ; and that said Butler gave permission to the officers to enter the office, to make the said search therein, assisted them in making the search and consented to the taking away by them of the said articles. The judge thereupon admitted them to be laid in evidence before the jury.

This finding is, in effect, a decision that the search was not an unreasonable one, and that there was no “seizure ” of anything ; and that the accused must be holden to have consented to the taking away by the officers of the said articles. The evidence upon which this finding was made is not before us, and we are not able to review the finding, even if for any cause it was desirable to do so.

Counsel for the accused argue that this finding, although it shows that Butler was in charge of the defendant’s office at the time, does not show that he was the agent of the defendant for the purpose of admitting the police officers and consenting to the search and to the taking away of the said articles. We must assume, notwithstanding this argument, that the precise objection made in this court was made in the Superior Court and decided adverse^ to the defendant; otherwise the defendant has no standing to be heard here. This finding of the Superior Court might, perhaps, be treated as decisive of the first reason of appeal, because it shows that there has been no violation of the Constitution of this State, or of the United States.

We do not, however, place our decision on this ground alone. A constitution is that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised; and its provisions are the rule of conduct for those branches of the government which exercise the sovereign power. Both the sections cited by the defendant, have reference to the security of the citizen as to his possessions and as to his person. The eighth section forbids the legislature to enact any statute, and the courts from passing any rule, which would authorize any unreasonable search or seizure of the goods of a citizen. And the ninth forbids any legislation or rule of court which would compel any one accused of a crime to give evidence against himself. In this respect neither of the sections so cited have any application to this case. The act of the police was not directed, nor is it sought to be justified, by any statute or by any rule of any court. The theory of the defendant is that that act was a trespass. For the present purposes that theory may be granted to be the true one. And what then ? The police officers would be liable in a proper action to pay to the defendant all damage they had done him. But that consequence does not affect the question now before us. It does, however, show that the eighth section of article 1 has no bearing upon the facts of this case. Indeed the defendant hardly claims that the eighth section alone affects his objection. But he does claim that a search or a seizure may be so made, that the production in evidence of any of his goods or possessions taken, is to compel the accused to furnish evidence against himself; and in that way to become a violation of the ninth section of the first article of the Constitution. This might be the result where the private papers of a suspected person were seized in order to be read to the jury as incriminating evidence against him. To reach this result the word “ papers ” in the eighth section of article 1 must be taken to mean writings, — not pieces, of paper as mere inanimate goods, but papers on which are written or printed words that may be shown in evidence as the words of the suspected man. In this sense a search or seizure of the “ papers ” of a citizen might be unreasonable, because it might lead to a violation of the provisions of the ninth section. In Boyd v. The U. S., 116 U. S., 616, an Act of Congress was held to be unconstitutional, because it required the party to produce his books, invoices and papers, and because the “ entries ” in the books, invoices and papers so produced, were to be made evidence against him. See also Ordronaux, Const. Legislation, 247; 1 Hare’s Amer. Const. Law, 531. It was against the seizure of “ papers,” using that word in the sense just mentioned, that the vigor of Loud Camden’s opinion in Entinck v. Carrington, 19 How. St. Tr., 1029, was directed.

The package here shown to the jury was an envelope with certain inclosures, — a simple piece of the defendant’s personal property; having of itself no voice or meaning so far as his guilt or innocence was concerned, any more than if it had been a lump of clay, or a block of senseless wood. It made no statement. It gave no evidence. Its presence or absence on the trial, if it had stood alone, would have signified nothing. It was his conduct in respect to this piece of ■property, both before and after the fire, his extreme solicitude to save it from destruction, which was incriminating. This conduct was detailed to the jury by sundry witnesses, and to their testimony no objection was made. We think no constitutional provision was violated by permitting the jury to ■see the envelope. And even if it had been taken from the possession of the defendant by a trespass, as he claims, that would have been no valid objection to its admissibility. 1 Greenleaf’s Ev., § 254 a ; Wharton’s Crim. Ev., § 678 ; Commonwealth v. Dana, 2 Met., 329; Legatt v. Tollervey, 14 East, 302; Jordan v. Lewis, ibid., 305 (n.) ; Phillips on Evidence, p. 426; State v. Jones, 54 Mo., 478; State v. Garrett, 71 N. Car., 85; State v. Flynn, 36 N. H., 64, 70; Commonwealth v. Tibbetts, 157 Mass., 519, 521; Commonwealth v. Brown, 121 id., 69, 81; Commonwealth v. Welch, 163 id,, 372; Commonwealth v. Brelsford, 161 id., 61; Chastang v. The State, 83 Ala., 29; Spicer v. The State, 69 id., 159 ; Sampson v. The State, 54 id., 241; Siebert v. People, 143 Ill., 571; Grindrat v. People, 138 id., 103, 111; Painter v. People, 147 id., 444, 466.

The defendant further insists that the trial court erred in permitting certain questions to be asked of him on cross-examination, concerning his trip to Old Point Comfort. The statute of this State permits any person on trial for a criminal offense, at his own option to testify. The defendant chose to avail himself of this privilege. By so doing he subjected himself to the same rules, and was called upon to submit to the same tests, which could by law be applied to other witnesses. Having availed himself of the privilege of the statute, he assumed the burden necessarily incident to the position. Having elected to become a witness in his own behalf, he occupied for the time being the position of any other witness, with all its duties and obligations. State v. Green, 35 Conn., 203; State v. Ober, 52 N. H., 459; Commonwealth v. Smith, 163 Mass., 411, 431; Commonwealth v. Mullen, 97 id., 545; McGarry v. The People, 2 Lans., 227; Connors v. The People, 50 N. Y., 240.

All cross-examination is intended to afford the jury or the court a test by which to weigh the testimony that the witness has given. In this case the cross-examination of the defendant tended to show that he had made a willfully untrue statement in his direct examination. It was proper that the questions should go far enough to make it entirely clear whether there had been such an untrue statement or not. We think it was fairly within the discretion of the court to permit the questions to which objection was made; not because they tended to show adultery in another State, but because they tended to show perjury on the trial then in progress.

The questions asked in cross-examination of the witnesses Ames and Fairbanks were properly excluded, and for the reason assigned by the trial court: that they would raise a collateral issue. Take one instance to illustrate all: The witness Fairbanks was shown a collection of slips of paper, on each of which there was handwriting, and he was asked, “ How many handwritings do you find there ? ” These pieces of paper had not been in the case; the writing on them was not admitted or claimed to be that of the defendant or of the witness Jackson. Any possible answer that the witness might have given to the question would have been utterly meaningless, unless other evidence was admitted to show that the answer was incorrect. And then the door would be opened to an unlimited inquiry, collateral to the question on which the jury was to pass. 1 Greenl. Ev. § 449; Tyler v. Todd, 36 Conn., 218, 222; Bacon v. Williams, 13 Gray, 525; Odiorne v. Winkley, 2 Gall., 51, 53.

There is no error.

In this opinion Fenst and Hamersley, Js., concurred.

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Concurrence Opinion

Baldwin, J.

(concurring in the result). I concur in the foregoing opinion, except with respect to its treatment of the point of constitutional law, which would have arisen, had not the defendant, by his authorized agent, consented to the search of his rooms and the seizure of his papers and effects.

The Constitution of Connecticut was ordained, as its preamble declares, in order more effectually to define, secure, and perpetuate the liberties, rights, and privileges which its people had derived from their ancestors, and among the “great and essential principles of liberty and free government” which they thought it necessary to include in-their Declaration of Rights, is that defined in its eighth section, in the following terms:

“ The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

This constitutes one of the fundamental conditions under which the powers of government in this State can be exercised by those in authority. State v. Conlon, 65 Conn., 478, 489. The language in which it is expressed was probably adopted from that in the Declaration of Rights of the Constitution of Mississippi (Art. 1, § 9, 2 Poole’s Charters and Constitutions, 1055), which had been framed in the preceding year, and is somewhat more precise and explicit than that of the fourth amendment to the Constitution of the United States. To determine what searches and seizures are to be deemed unreasonable, we must look back to events, then not far distant, in the history of the English people. New judicial precedents had been more familiar in the American colonies than those furnished by the decisions of Lord Mansfield and Lord Camden, which denied the validity of general search warrants. In one of these, the court had said that “ papers are often the dearest property a man can have,” and that “ the law never forces evidence from the party in whose power it is.” Entinck v. Carrington, 2 Wils., 275, 291, 292. That case was the leading authority upon which, in 1814, this court relied in holding that the magistrate who signed and the officer who served a general warrant to search for certain stolen goods in any suspected place in the town of Wilton, and to arrest all persons suspected of the theft, were both- liable as trespassers to a person arrested. Grumon v. Raymond, 1 Conn., 40. It is not, says Judge Cooley, “ allowable to invade one’s privacy for the sole purpose of obtaining evidence against him, except in a few special cases where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruction. . . . The fourth amendment to the Constitution of the United States, found also in many State constitutions, would clearly preclude the seizure of one’s papers in order to obtain evidence against him ; and the spirit of the fifth amendment — that no person shall be compelled in a criminal case to give evidence against himself — would also forbid such seizure.” Cooley’s Const. Lim. (6th Ed.), p. 370.

It does not seem to me that the prohibitions of the eighth section of our Declarations of Rights can be properly read as applying only to acts of legislation or rules of court. The powers of the State are distributed (Const., Art. II.) between three separate magistracies, to one of which are confided those which are executive. The supreme executive power is vested in the Governor (Art. IV.), and among the inferior executive offices for which provision is made is that of sheriff (Art. IV., § 20). . The police officers appointed by our different municipal corporations are, as fully as the sheriff of the county, officers of the law, charged with the execution of a trust confided to them for and by authority of the State. State ex rel. Rylands v. Pinkerman, 63 Conn., 176, 182. They represent its sovereignty, within their proper sphere of action. They are its immediate agents for the detection and arrest of offenders against its laws. The English precedents which established the doctrine upon which these constitutional guaranties are based, grew out of arrests and seizures made under warrants issued by direction of executive officers of the government, and not-resting upon any statute or rule of court. It is from that quarter, it appears to me, more than from any other,, that danger is to be anticipated. The common law was ready to supply a remedy for any unreasonable search or seizure, by an action of trespass against the individuals who made it. Our Declaration of Rights would be meaningless if it did not seek to do more than this. Its guaranties were designed to protect the citizen against the State, that is, against any and every officer claiming to act under its authority; and to do so in a way that would repress the wrongful act most efficiently. Upon the trial of a civil action between private individuals, either can introduce any relevant paper in evidence, notwithstanding he may have obtained it in a manner not warranted by law. Legatt v. Tollervey, 14 East, 302; Jordan v. Lewis, ibid., 306. If the constitutional guaranty now under consideration is to be liberally interpreted in favor of the citizen, it would be difficult to apply the principle of such decisions to criminal prosecutions, supported by proof of papers illegally seized for that purpose, in the defendant’s house, by public officers acting professedly as such, without seeming to allow the State to profit by its own wrong.

What was taken by the policemen from the defendant’s rooms was a large envelope, containing a photograph and a tintype. Evidence was introduced by the State tending to show that it had been originally addressed by the defendant to “ Mrs. R. M. Thane, P. O. Box 1003, Hartford, Conn.,” and put in the mail by him at about 10 p. M. on the night of the fire, in order to preserve it from being burned; that this box No. 1003 was hired by him under the assumed name of R. M. Thane; that the envelope was taken by his agent, at his request, from the box the next morning, and afterwards given to him at his request; that it then bore a post-mark of 10 p. M., March 14; that his attention was then called to. the fact of this date and the proof it afforded of his having mailed it before that hour; and that when it was found, on the day of his arrest, in a closet, concealed under some books, the address had been partially mutilated and the postage stamps and post-mark removed. It seems to me that this envelope was one of the papers as well as one of the possessions of the defendant, and that it spoke loudly against him.

Whether its seizure would have been, under the circumstances, unreasonable, in the absence of authority from the defendant’s agent, I consider it unnecessary for us to determine, in view of the fact that such authority existed. It presents a question of the utmost gravity, in its bearing, on the one hand, upon the methods of detecting crime, and on the other, upon the liberty of the individual and the inviolability of home. Lieber’s Civil Liberty and Self Government, 63. It would seem to me wiser to postpone any decision upon this subject, until a ease arises which imperatively requires it.

In this opinion, Torrance, J., concurred.