State v. Cram

BELT,- C. J.,

dissenting:

To extract blood by hypodermic needle from a person accused of crime, without his consent and while he is unconscious, for the purpose of obtaining evidence to be used against him, shocks my sense of justice and

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decency. It is law enforcement with a vengeance! It is law enforcement based upon violation of the law and ought not be approved by any court. The hypodermic needle was not inserted into the body of the defendant for the purpose of treatment. The doctor, upon request of the police officer, extracted the blood to be used in bringing about the conviction of the defendant. It was plainly an illegal act constituting an assault and battery upon the person of the defendant but it is believed that the doctor, in complying with the police officer’s request, acted in good faith. It is true that the defendant was under arrest, but that is no justification for going beyond the realm of reasonable search. The zeal of the police officer ought never be permitted to transcend the constitutional rights of the accused.

The precise question is whether the evidence so obtained is inadmissible as being violative of the constitutional guaranty against self incrimination. Was the effect of such evidence to make the defendant a witness against himself? Was he compelled to furnish the evidence which tended to bring about his conviction?

This case is in the same category as those wherein force is exerted to obtain the blood test. Cases, as in

State v. Duguid,

50 Ariz. 276 , 72 P. (2d) 435 , involving consent or acquiescence by the accused, are not in point. Obtaining evidence by such method from an unconscious person is more obnoxious than if obtained through compulsion, as in the latter instance the accused would at least know what was going on and have an opportunity to object.

It is conceded that the variation of wording in the constitutional clauses of the several states concerning

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self incrimination lias no legal significance. “Furnishing evidence” through compulsion or without the consent of the accused is a violation of the constitutional provision protecting the accused from self incrimination. But it is argued that the defendant did not testify concerning the blood test nor did he “furnish the evidence” used against him. If defendant did not furnish the blood, ivho did? The fact that there was no motion for suppression of the evidence is wholly immaterial. The blood was not offered in evidence. A doctor was permitted, over the objection of the defendant, to testify as to the result of the blood test.

The majority quote extensively from Wigmore, but it seems to me that the limitation which the learned professor puts upon the constitutional privilege against self incrimination fails to afford due protection to the accused against encroachment upon his personal rights. In the instant case, clearly no “oral utterance” was involved but what was done was, nevertheless, equivalent to compelling the defendant to be a witness against himself for, after all, it was his blood — extracted without his consent — -which was speaking against him.

With all deference to my brethren of the majority, I think their construction of the constitutional provision in question is too narrow and limited. When the personal rights of the citizen, guaranteed under the constitution, are involved, the courts should lie inclined to liberal interpretation. As said in 11 Am. Jur. 670 , Constitutional Law § 59:

“It is a fundamental canon of construction that a Constitution should receive a liberal interpretation in favor of a citizen, especially with respect to those provisions which were designed to safeguard the liberty and security of the citizen in regard to

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both, person and property. * citing numerous authorities in support of the text.

True, the scope of the constitutional provision relative to self incrimination should not be so extended by judicial construction as to unduly thwart officers in the enforcement of the law. We should not be influenced by maudlin sentimentalism. Neither should we permit any stealthy encroachment upon the constitutional rights of a citizen even though he be accused of a crime. In bringing about convictions, methods which do not square with our sense of fairness and decency have no place in the proper administration of justice.

Courts have not stated any definite rule for determining what constitutes self incrimination. Indeed, it would be hazardous to do so. All courts agree that the constitutional guarawty extends to all testimonial utterances by defendant. It is also well established that it has no application to such physical evidential circumstances as may be revealed by open exhibition of the witness’s body or bj ordinary observation of his person. Clearly, he may be compelled to submit to such things as finger printing after arrest or to stand up in court for the purpose of identification: Wharton’s Criminal Evidence (11th Ed.) Vol. 3, p. 1979. However, there are many borderline cases and, as to these, the courts are not in accord even when similar factual situations are involved: Wharton’s Criminal Evidence (11th Ed.), Vol. 1, § 383. Some courts follow the strict Wigmore interpretation which, it is said, relates solely to “testimonial compulsion”. Other courts give a broader and more liberal interpretation to the constitution and do not limit the privilege of immimity to the giving of oral testimony, but hold that it embraces as well the

furnishing of other evidence,

by the accused,

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which might aid in establishing his guilt. In commenting on these two lines of authorities, Jones in his Commentaries on Evidence (2d Ed.), § 1391, says:

“A

far more liberal and, in the opinion of the author, a better construction has been placed upon the constitutional provision in other cases, where this class of testimony has been rejected on the ground that the court could not compel a witness to furnish evidence against himself. ’ ’

In 28 R. C. L. 434, Witnesses § 20, it is said:

“The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a witness against himself are so sacred, and the pressure toward their relaxation so great when the suspicion of guilt is strong and the evidence obscure, that it is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to the giving of oral testimony, but embraces as well the

furnishing of evidence by other means than by word of mouth,

the divulging, in short, of any fact which the accused has a right to hold secret. * * * ” (Italics ours.)

Here we are not concerned with evidence concerning the identification of the accused, as in finger print cases. The question before us is whether the accused can be compelled to furnish blood to be used as evidence against himself , j That evidence as to the result of compulsory blood tests made for the purpose of determining whether a person accused of crime was intoxicated violates the constitutional immunity from self incrimination and is therefore inadmissible, see:

State v. Height,

117 Iowa 650 , 91 N. W. 935 , 94 Am. St. Rep.

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323, 59 L. R. A. 437 (compulsory examination of defendant charged with rape to determine whether he was afflicted with a venereal disease);

Wragg v, Griffin,

185 Iowa 243 , 170 N. W. 400 , 2 A. L. R. 1327, citing the Height case with approval (compulsory extraction of blood for a Wasserman test);

State v. Weltha,

228 Iowa 519 , 292 N. W. 148 (defendant motorist charged with manslaughter — involved intoxication. Blood extracted from defendant while unconscious in a hospital, without his consent. Admission of evidence relative to result of blood test held reversible error);

State v. Newcomb,

220 Md. 54 , 119 S. W. 405 (compulsory examination of defendant charged with rape to determine whether he suffered from venereal disease. Evidence as to result of examination held violative of constitutional right not to be compelled to be a ¿witness against himself, citing

State v. Height, supra), State v. Matsinger

(Mo.), 180 S. W. 856 ;

State v. Horton,

247 Mo. 657 , 153 S. W. 1051 ;

Bethel v. State,

178 Ark. 277 , 10 S. W. (2d) 370 ;

Apodaca v. State,

140 Tex. Crim. Rep. 593, 146 S. W. (2d) 381 ;

People v. Corder,

244 Mich. 274 , 221 N. W. 309 ;

People v. Akens,

25 Cal. App. 373 , 143 P. 795 ;

Elder v. State,

143 Ga. 363 , 85 S. E. 97 ;

Cooper v. State,

86 Ala. 610 , 6 So. 110 , 4 L. R. A. 766, 11 Am. St. Rep. 84 ;

Stokes v. State,

64 Tenn. 619 , 30 Am. St. Rep. 72 .

In

Bednarik v. Bednarik,

18 N. J. Misc. 633, 16 A. (2d) 80, the court said:

“To subject a person against his will to a blood test is an assault and battery, and clearly an invasion of his personal privacy. It involves the sticking of a surgical needle into his body. Perhaps the operation is harmless in the great majority of cases, although the risk of infection is always present. But if we admit such an encroachment

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upon the personal immunity of an individual where in principle can we stop? Suppose medical discovery in the future evolves a technique whereby the truth may infallibly be secured from a witness by trepanning Ms skull and testing the functions of the brain beneath. No one would contend that the witness could be forced against Ms will to undergo such a major operation at the imminent risk of Ms life, in order to secure evidence in a suit between private parties. How then can he be forced to undergo a less dangerous operation, and at what point shall the line be drawn? To my mind it is not the degree of risk to life, health or happiness which is the determinative factor, but the fact of the invasion of the constitutional right to personal privacy.”/

If the court is to approve this method of extracting evidence from within the body of the accused, without his assent, we might well pose the question: Just how far will the state be permitted to encroach upon the personal rights of a citizen suspected of having committed a crime? Assume that A is arrested for larceny of a diamond and is suspected of having swallowed the gem. Will we approve the compulsory use of a stomach pump to obtain the evidence? Will the injection of “truth serums”, or spinal punctures, or “lie detectors” be the next step! I recognize full well that the law is a progressive science but “progress” should not be accomplished by an invasion of rights guaranteed under the constitution. '

Much of the majority opinion — aside from approval of the Wigmore interpretation — is devoted to a criticism of the cases above cited holding such evidence inadmissible. It is noteworthy, however, that there is a paucity of authority cited supporting the contention of the respondent.

State v. Gatton,

60 Ohio App. 192 ,

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20 N. E. (2d) 265 — an intermediate court of appeal— is not in point. The question there was whether the state could comment upon the refusal of the defendant to submit to a blood test. No test was made. The constitution of Ohio (Art. I, § 10) provided:

“No person shall be compelled, in any criminal casé to be a'witness against himself; but his failure to testify may be considered by the court and jury and may be the subject of comment by counsel.

=?:< ?

This decision is contrary to the well-reasoned earlier case of

Booker v. City of Cincinnati,

reported in 5 Ohio Opinions 433.

No per son accused of crime can be required hy “ or al or written utterances”,' or the equivalent thereof,

to

criminate himself. In the instant case, it is shown by uncontradicted evidence that defendant, while in the custody of the law, was compelled by an unlawful act to furnish evidence to be used against himself. This method of transgressing defendant’s constitutional rights was just as effective as if he had been compelled by “oral or written utterances” to criminate

Both the federal and state constitutional provisions relative to search and seizure and self crimination were enacted to safeguard and protect the personal security of the citizen. Evidence obtained by unlawful search and seizure and introduced against a person accused of crime has the effect of compelling such person to criminate himself:

Agnello v. United States,

269 U. S. 20 , 70 L. Ed. 145 , 46 S. Ct. 4 , 51 A. L. R. 409;

Gouled v. United States,

255 U. S. 298 , 65 L. Ed. 647 , 41 S. Ct. 261 ;

United States v. Lefkoivitz,

285 U. S. 452 , 76 L. Ed. 877 , 52 S. Ct. 420 , 82 A. L. R. 775;

Boyd v. United States, 116 U. S. 616 , 29

L. Ed. 746, 6 S. Ct. 524 ;

Fulton

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v. City of Philadelphia,

168 Miss. 30 , 148 So. 346 ;

State v. Slamon,

73 Vt. 22 , 50 A. 1097 , 87 Am. St. Rep. 711 .

Mr. Justice Clark in

Gouled v. United States,

supra, commenting upon these constitutional provisions, in reference to the introduction in evidence of papers obtained through search and seizure, said:

“ * * * In practice the result is the same to one accused of crime, whether he be obliged to supply evidence against himself or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers. In either case he is the unwilling source of the evidence, and the Fifth Amendment forbids that he shall be compelled to be a witness against himself in a criminal case.”

Since it is shown by uncontradicted evidence that personal rights guaranteed under the constitution have been violated, this court, in the interests of due administration of justice, might well take cognizance of the question of unlawful search and seizure, even though counsel on oral argument stated that he did “not urge it,now”. Unlawful search and seizure was not a ground of objection in the lower court; but was assigned as error and argued as such in the brief of appellant. .

I think the judgment of conviction should be reversed and the cause remanded for a new trial.