The opinion
Mr. Chief Justice Knauss
dissenting:
I respectfully dissent. It is my conviction that the opinion of the court herein amply demonstrates the fallacy of the conclusion reached. It is conceded that Lt. Moomaw “gave an inkling as to the unreliability of the [paraffin] test.” His testimony did more —it demonstrated that the nitrates would oxidize after the lapse of a few hours, as well as the fact that they could be removed by washing. In the instant case there was ample opportunity for the defendant to wash and bathe himself in the interval of several hours that elapsed between the death of decedent and the time when Lt. Moomaw asked him to submit to the test, and evidence showed that he had removed some of his clothing. All of this testimony was before the jury. The court did not, by remarks or instructions to the jury, classify the paraffin test as in the same category as finger, palm and footprints.
There is ample evidence in the record which the jury was entitled to believe showing defendant’s guilt aside from the bare remark of Lt. Moomaw. If defendant’s statements made after conviction while undergoing a voluntary lie detector test are to be believed, then his testimony given at the trial was perjured. I do not believe that Mills v. People, this day decided, is in point. Nowhere is a lie» detector test recognized as admissible in evidence in a criminal case. In such test the accused person must respond to questions in order to conduct the test. This he cannot be compelled to do. There is ample authority in this state holding that the constitutional prohibition against self-incrimination applies only to testimonial compulsion, and the authorities so holding are cited in the opinion in this case. If fingerprints of a *396 defendant may be taken and used in evidence, then I am of the opinion that the results of the paraffin test,, if made, are admissible subject to cross-examination as to the accuracy thereof. The case of People v. Swallow, 165 N.Y.S. 915 , discloses the distinction to be observed.
Here a fair and impartial jury heard the testimony, evaluated it, and concluded that the defendant was guilty of murder in the first degree. We must accord to them the ability to weigh all the evidence and not be swayed by a statement such as that condemned in the majority opinion.
No case of this nature is entirely free of error. We reverse only when there is prejudicial error. Here I find none. Even if it be conceded that the testimony of Lt. Moomaw was not admissible, its reception was so inconsequential that it should not be permitted to upset the solemn verdict of the jury based on competent evidence of defendant’s guilt. In Colorado there is ample authority for the rule that “mere possibility of prejudice is insufficient to warrant a reversal.” O’Loughlin v. People, 90 Colo. 368 , 10 P. (2d) 543 ; McQueary v. People, 48 Colo. 214 , 110 Pac. 210 , and the more recent case of Walker v. People, 126 Colo. 135 , 248 P. (2d) 287 . As stated in the Walker case, supra, “the error * * * was so slight and insignificant that we are certain it had no effect whatsoever upon the jury’s conclusion.” We must assume that the jury in this case was possessed of ordinary intelligence, capable of evaluating the testimony. I am unable to agree that the testimony of Lt. Moomaw constituted prejudicial error.
The defendant gave as his reason for, refusal to submit to the test that his attorney advised him not to do so. The jury had this reason before it, and surely could not from this draw an inference that defendant’s refusal to take the test was through a sense of guilt, particularly in the light of all the evidence in this record.
I, therefore, dissent.