# Long v. State > Court of Criminal Appeals of Texas · June 24, 1931 · 120 Tex. Crim. 373 URL: https://www.frixlaw.com/law-library/cases/3914575 ## Case - **Full name:** Maud Long v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 24, 1931 - **Citations:** 120 Tex. Crim. 373; 48 S.W.2d 632; 1931 Tex. Crim. App. LEXIS 231 - **Precedential status:** Published - **Opinion:** Dissent by Morrow - **Judges:** Morrow, Lattimore, Hawkins - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3914575 ## Opinion text MORROW, Presiding Judge (dissenting). — Rhodes, a witness for the state, testified that he sold strychnine to a woman whom he had never previously seen and whom on the trial of the case he identified as the appellant. The person purchasing the strychnine had, according to the testimony of Rhodes, inscribed in a book the words, “Mrs. J. D. Moore.” Upon the trial, according to the bill of exception, the appellant was forced and compelled to write in the presence of the jury, the following: “Mrs. Maude Long, Mrs. Jim Long, Mrs. J. D. Moore, middle of December.” The writing last mentioned was, over the appellant’s objection, introduced in evidence against her and given to the jury for the purpose of comparison with the writing first mentioned above introduced by the state. In the bill of rights (article 1, section 10, Const, of Texas), it is declared that one accused of crime shall not be compelled to give evidence against himself. When the accused in the present trial became a witness in her own behalf, she waived the right to complain of proper cross-examination. That the scope of the cross-examination is limited is affirmed by all writers on the subject. As to the scope of the' limitation, the decisions in other jurisdictions are conflicting to a degree amounting almost to confusion. In many of the precedents in other states the accused was not a witness and for that reason the authorities are not applicable. The same is true of some of the decisions in our own state. It seems clear that a demonstration by an act which tends to self-incrimination is as obnoxious to the immunity guaranteed by the Constitution as one by words. See Ruling Case Law, vol. 28, p. 434, sec. 20; Moore v. State, 87 Texas Crim. Rep., 569 , 226 S. W., 415 ; Wharton’s Cr. Ev. (10th Ed.), vol. 2, p. 1553; Wharton’s Cr. Ev., supra, vol. 1, p. 617, sec. 315. See, also, Gallaher v. State, 28 Texas App, 247, 12 S. W., 1087, 1095 , from which the following is quoted: “He was not required by the court to submit to the disguise and exhibition of himself before the jury. There was no compulsion used against him. He made no objection whatever to the disguise and exhibition of which he now complains. * * * If he had objected to such test and the court had required him to undergo it, a very different question would have been presented. * * * If, in this case, the defendant had declined to be disguised and exhibited, the, court would doubtless have protected him in his constitutional right to be exempted from giving evidence against himself.” In Turman’s case, 50 Texas Crim. Rep., 7 , 95 S. W., 533, 536 , the *386 accused became a witness in his own behalf. The court said: “We hold it was not permissible for the State to require appellant to place the cap on his head for the purpose of identification by prosecutrix. * * * This was compelling defendant to undergo an experiment before the jury. True, he took the stand voluntarily, and was subject, as any other witness, to cross-examination; but this did not authorize the prosecution to require him to undergo an experiment.” In Martin v. State, 80 Texas Crim. Rep., 275 , 189 S. W., 262, 263 , the accused, on the former trial, testified in his own behalf and wrote his name for comparison. He objected to doing so at the time. On the present trial a witness testified that he saw the defendant do the writing on the former trial. After he had taken the stand in his own behalf, a motion to withdraw this testimony from the jury was overruled. The state relied upon this writing to prove that Martin wrote the name in the alleged forged instrument. The court said: “The jury passed it among themselves, and this seems to have closed this part of the case. No experts were placed on the stand and no evidence in regard to the similarity was introduced. The name of appellant as written and the view of it by the jury was all that constituted this part of the case. Appellant denied the execution of the forged instrument under oath, and testified to facts and circumstances showing that he did not forge the instrument or write any part of it. This was a serious question in the case, the State relying upon the fact that he passed the instrument to show that it was a forgery and that he knew it was a forgery. * * * Under the circumstances of this case the writer does not believe this ought to have gone before the jury. There ought to have been other testimony than the mere passing of the signature to the jury. What the jury discovered or thought they discovered from comparison is not shown by any testimony. The only means of arriving at what they did discover is to be found in the verdict they rendered.” In Ency. of Evidence, vol. 5, p. 51, are collated many cases holding that the compulsory exhibition of the person of one accused of crime offends against the constitutional guarantee against self-incrimination. The same principle is applicable to footprints. In Moore’s case, 87 Texas Crim. Rep., 569 , 226 S. W., 415 , in holding admissible footprints made by the accused at the instance of the officer having him in charge, the following expression is used: “It is not a case in which the accused was compelled to make the footprints, but one in which it was voluntarily, and inhibited, so far as we are aware, by no rule of evidence. Underhill on Crim. Evidence, sec. 374, p. 646, from which we quote: “ ‘Nor can the accused be compelled to place his foot in a shoe-track found in the vicinity of the crime. His refusal to do so can neither be proved against him nor commented on by counsel, while, generally, if he is forcibly compelled to do so, a witness, who was present at the comparison, cannot testify to the results. But it may always be proved that the *387 accused voluntarily went to the locus in quo and placed his foot in footprints found there and that his foot fitted the footprints perfectly.’ ” The demand that the accused experiment in handwriting for the purpose of comparison, not being proper cross-examination, it was not embraced in the waiver of privilege implied by her becoming a witness. The accused, therefore, was not bound to make the experiment, and the court exceeded its power in forcing her to do so. The opinion of this court in Kennison v. State, 97 Texas Crim. Rep., 154 , 260 S. W., 174 , while dealing specifically with the subject of the confession of the accused, is not without weight in the solution of the question at present under consideration. After his arrest, Kennison was directed by the county attorney to write his name and certain other words upon a piece of paper. The text of the opinion reversing the conviction was that the use of the writing for the purpose of comparison upon the trial of the accused was compelling him to give evidence against himself and was violative of the confession statute, article 727, C. C. P., 1925. In the present instance, the bill of exception complaining of the action of the court, both in forcing the accused to write and in receiving the result of the experimentative evidence, is very carefully drawn and clearly presents the legal questions arising from the transaction. From the bill, the following quotations are taken: “The Court states as a fact that when the District Attorney asked the defendant, Maude Long, to write said lines, above set forth, in the presence of the jury, defendant objected because same was improper, was compelling defendant to give evidence against herself, and was, in effect, forcing and compelling the defendant to give evidence against herself, contrary to law and the Constitution of this State, which objection was by the Court overruled, and defendant was by the Court overruled, and defendant was compelled to write said four lines, above set forth, in the presence of the jury.” “The Court overruled all of said objections and compelled the defendant to write said four lines, above set forth, in the presence of the jury; and the Court further states as a fact that he permitted the State to introduce in evidence and exhibit to the jury the said four lines, so written in the presence of the jury; and the Court further states as a fact that he permitted the State to introduce in evidence and exhibit to- the jury the said four lines, so written in the presence of the jury, for the purpose of comparison with the poison book of the name of Mrs. J. D. Moore, as above set out; and the Court certifies that all of said proceedings occurred over said objections of the defendant as herein stated, and the defendant duly objected and excepted as to the compelling of the defendant to write said four lines, above set forth, and in permitting the state to introduce them to the jury for comparison with the name of Mrs. J. D. *388 Mo.ore in the poison book, and' the defendant objected for all the reasons above set forth.” , ^ ‘ , Article 731, C. C. P., 1925, reads as follows: “It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.” In the application of the statute, it usually occurs that there are called either witnesses who are familiar with the handwriting by reason of having seen the alleged writer of the document write, or experts, that is, persons skilled in detecting peculiarities of written documents and qualified tb give an opinion with reference thereto. ' In the present case, to prove the similarity of the writing of the accused upon the trial and that written in the poison book, the state introduced no witnesses but relied entirely upon the similarity of the two. The appellant, on the contrary, introduced two witnesses who were familiar with her handwriting and who testified that in their opinion the writing in ■ the poison book was not of her ■ making. The writing which she did upon the trial and that in the poison book were given to the jury in order that they might make a comparison thereof. ■ The bill of exception affirmatively states that the jury made a comparison of the handwriting and determined therefrom the identity of the- writer of the two; From the case of Martin v. State, 80 Texas Crim. Rep., 275 , 189 S. W., 262, 264 , we take the following quotation: . “Under the circumstances of this case the writer does not believe this ought.to have gone before the jury. There ought to have been other testimony than the mere passing of the signature to the jury. What the jury discovered or thought they discovered from comparison is not shown by any testimony. The only means of arriving at what they did discover is to be found in the verdict they rendered.” In the present instance, the appellant denied that she was the author of the writing in the alleged poison book and introduced witnesses who were familiar with her handwriting and supported her testimony. No experts were introduced to the contrary. Nor was there any testimony of experts to the similarity of the writing made by her upon the trial with that in the book mentioned. So far as the writer has been able to gather from an examination of many cases, the procedure mentioned is without parallel. As above stated, in the cases in which writings have been delivered to the jury for comparison there was evidence by experts in handwriting who were cross-examined upon the trial touching their reason, their experiences and the facts upon which they based their identity of the writings. It seems anomalous to put the liberty of a citizen in jeopardy based upon the identity of handwritings under the circumstances revealed by the record of the present appeal. The only prece *389 dqnts touching, the analogous facts .which have come, to the writer are tho$e cit;ed above, namely, Chester ,v. State, 23 Texas App., 577, 5 S. W., 125 , and.,Martin v. State, supra, in. which the practice was condemned. ■The--bill- of exception shows that the appellant- was compelled to perform the physical act of • writing certain words in'. the presence of the jury; that she write them against her will and opposed the procedure by prompt- and proper objection.. The words were intended for use by the state as incriminating evidence against the appellant and were so used against her will ■ and in opposition to. her objection that she was protected against such procedure by the bill of rights. ' So far as the- experience and observation of the writer extend the procedure is novel. There are cases in- this state in which the accused has performed physical acts in the presence of the jury, which cases were affirmed because the acts were done by consent or without sufficient objection. Those cases, as suggested above, indicate that if there had ' been proper objection, it would have been sustained. In no case coming to the attention- of the writer has it appeared, as it appears in this one, that the accused on trial was forced or compelled to do a physical ,a,ct, the result of which was used on the trial for the purpose of incriminating the accused. • In construing bills- of exception, it has been uniformly held that the certificate of the trial judge showing the facts on which the ruling was made is conclusive. See Branch’s Ann. Tex. P. C., sec. 217; Vernon’s Ann. C. C. P., vol. 2, art. 667, note 40; also Bank v. State, 95 Texas Crim. Rep., 384 , 254 S. W., 962 ; Morris v. State, 96 Texas Crim. Rep., 605 , 258 S. W., 1065 ; Matthews v. State, 98 Texas Crim. Rep., 404 , 266 S. W., 150 ; Elkins v. State, 101 Texas Crim. Rep., 377 , 276 S. W., 291 ; Curlee v. State, 104 Texas Crim. Rep., 15 , 282 S. W., 580 . Many other cases are in point. The action of the court, therefore, as reflected by the bill, pointedly requires this court to decide whether the accused, as a witness, can be compelled to give evidence against herself. A witness may be punished by way of contempt proceedings for his silence or his disobedience but the power of the trial court to force and compel him to perform a physical act (or to speak for that matter) is contrary to the letter and spirit of our organic law. If it should be held that the trial judge was right in commanding the accused to perform the experiment in question, we can conceive of no legal means by which he could compel her to comply. If the demand was a legal one, her refusal to comply therewith might be used against her on the trial as a circumstance tending to show guilt, but thq court could use no force to compel compliance. In the present instance, the means adopted to compel a compliance with the court’s demand are not disclosed. The bill of exception is not qualified, and contains. the bald statement that the accused was forced and compelled to perform the act. ..The words of the Constitution are “he shall not be compelled to give evidence against himself.” The words in *390 the bill of exception are that “she was compelled to give evidence against herself.” In the opinion of the writer, the request of the appellant to write in the presence of the jury for the purpose of comparison was not within the scope of legitimate cross-examination under the circumstances. Even if the query did not transcend the limits of proper cross-examination, the court was without power to force a compliance. The extent of the court’s authority would have been to punish by the use of the statutory methods for contempt, or to permit the use of her refusal in connection with the question to be considered by the jury against her. See Ruling Case Law, vol. 28, p. 428, sec. 13. The writer is further of the opinion that in the absence of some testimony going to show that the words written by the appellant bore evidence that they were in the same handwriting as that in the book introduced by the state, the writing should not have been delivered to the jury for the purpose of comparison. ■ The writer is of the opinion that the judgment should be reversed and the cause remanded. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3914575. Public record. Not legal advice.