101 So. 624 | Ala. Ct. App. | 1924
The appellant (defendant in the court below) was convicted of burglary and grand larceny.
Motion was made by defendant for a continuance of the case specifying many grounds therefor.
The granting or refusal of a motion for a continuance is within the sound discretion of the trial court, and where it does not appear that such discretion was abused, the trial court will not be put in error for refusing the motion. Sanderson v. State,
The trial court required the defendant, although not a witness in the case, to stand up in the presence of the jury to be inspected and identified by a state's witness on the stand. The following question propounded by the state to one Jackson, a witness for the state: "I will ask you to look at the defendant there, and say if he was about the size and build of the man that did the shooting that night." The witness answered: "I could tell if he would stand up so that I could look at him." The judge, addressing the defendant, said: "Stand up Mr. Wells." Over the objection and exception of his attorney, the defendant was required to stand up before the witness in the presence of the jury. Section 6, article 1, of the Constitution of Alabama of 1901, provides that the accused may "testify, in all cases, in his own behalf, if he elects so to be heard by himself and counsel, or either," but that he may "not be compelled to give evidence against himself."
Upon examination of the decisions of other states, we find a diversity of opinion upon the construction placed upon similar constitutional provisions. In State v. Ah Chuey,
In Garvin v. State,
In State v. Prudhomme, 25 La. Ann. 523, it was held that compelling a prisoner on trial for murder to take his feet from under a chair where he had put them to enable a witness who saw tracks of the murderer, to state how they corresponded with the prisoner's feet was not improper or a violation of the constitutional provision that a defendant in a criminal case may not be required to give evidence against himself.
The court in People v. Goldenson,
In State v. Graham,
In State v. Garrett,
In State v. Jacobs,
In Blackwell v. State,
In Aiken v. State,
In the dissenting opinion in State v. Ah Chuey,
From a review of the above cases, it will be observed that the diversity of opinion arises to some extent from the wording of the provision of the constitutions of the several states. For instance, the provision in the New York and Nevada Constitutions (Const. N.Y. art. 1, § 6; Const. Nev. art. 1, § 8) is: "No person in any criminal case shall be compelled to be a witness against himself." In Maryland, "No man ought to be compelled to give evidence against himself." Declaration of Rights, art. 22. In Rhode Island (Const. art. 1, § 13): "No man in a court of common law shall be compelled to give evidence criminating himself." In others, "Such person shall not be compelled to furnish or give evidence against himself;" "shall not be compelled to testify against himself," etc. Probably the intention of the different states in adopting these provisions was the same; and yet, technically, some give greater protection to a defendant than others, for there is no doubt that strictly speaking the provision "No person shall be compelled to testify against himself," affords less protection than the others above mentioned. However, there is a real diversity of opinion.
Although we find no case in Alabama in which the facts are precisely the same as in the instant case, there are several so closely analogous, that they show the attitude of our Supreme Court upon this question, and the construction placed upon Article 1, section 6 of the Constitution. In Williams v. State,
"It is contended that this was a violation of the constitutional provision that the accused shall not be compelled to give evidence against himself. * * * It is very clear that if defendant had not voluntarily made herself a witness in the cause, as by the statute she was privileged to do, the action of the court would have been an invasion of the constitutional immunity above referred to."
In Davis v. State,
"The accused cannot be compelled to do or say anything that may tend to criminate him and his refusal to do so cannot be proved as a *243 circumstance against him. * * * The principle first above declared is founded upon the protection guaranteed to him by the Constitution that `he shall not be compelled to give evidence against himself,' * * * and to conserve the spirit and purpose of the guaranty the accused cannot * * * be compelled to do an affirmative act or to affirmatively say anything which may tend to criminate him."
We conclude from the pronouncements in the Williams Case, supra, and the Davis Case, supra, that it was error to compel the defendant to in effect place himself in evidence, and exhibit himself, which, connected with the testimony of a witness tended to prove him to be the man who did the shooting on the night of the burglary, and indirectly establish his guilt. See, also, Cooper v. State,
It will serve no useful purpose to discuss the numerous objections raised on the trial of the case as they will probably not arise in another trial.
For the error indicated the judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.