City of Barron v. Covey

• Decision Date: 11 October 1955
• Citation: City of Barron v. Covey, 271 Wis. 10, 72 N.W.2d 387 (Wis. 1955)
• Parties: CITY OF BARRON, Wisconsin, Appellant, v. William A. COVEY, Respondent.
• Court: Wisconsin Supreme Court

Page 387

72 N.W.2d 387

271 Wis. 10

CITY OF BARRON, Wisconsin, Appellant, v.William A. COVEY, Respondent.

Supreme Court of Wisconsin.

Oct. 11, 1955.

George Strang, Barron, for appellant.

Charles R. Ellefsen, Balsam Lake, for respondent.

CURRIE, Justice.

Upon the trial, the trial court ruled inadmissible testimony of a police officer to the effect that after defendant's arrest he refused the officer's request that defendant supply a sample of his urine for the purpose of subjecting the same to a chemical test to determine its alcoholic content.A proper offer of proof was made by the city attorney of the rejected testimony following such adverse ruling.The sole question on this appeal is whether the ruling of the trial court rejecting such testimony constituted prejudicial error.

Sec. 8, art. 1, of the Wisconsin constitution, provides in part as follows: 'no person shall * * * be compelled in any criminal case to be a witness against himself'.

Sec. 325.13(2), Stats., reads as follows:

'In all criminal actions and proceedings the party charged shall, at his own request, but not otherwise, be a competent witness; but his refusal or omission to testify shall create no presumption against him or any other party thereto.'

Counsel for the defendant contends that the admission of such excluded testimony would have violated the above-quoted constitutional and statutory provisions.

We do not consider that the provisions of sec. 325.13(2), Stats., have any application to the question before us on this appeal because such statute by its express terms is limited to a failure of a defendant in a criminal prosecution to testify.In the instant case no request was made of the defendant to testify or make any statement by word of mouth.For a proper application of such statuteseeState v. Jackson, 1935, 219 Wis. 13, 261 N.W. 732, where it was held that such statute rendered it an impropriety for the district attorney to have commented in his argument to the jury upon the failure of the defendant to have taken the witness stand during the course of the trial.

Whether the constitutional provision against self-incrimination is applicable to the facts of the case at bar would seem to be ruled by the decision of this court in Green Lake County v. Domes, 1945, 247 Wis. 90, 18 N.W.2d 348, 159 A.L.R. 204.In that casedefendant was prosecuted for violating a county ordinance prohibiting the operation of an automobile while intoxicated.Defendant was found guilty by the jury and on appeal he contended that error had been committed by admitting over his objection the testimony of a physician of his findings as to intoxication as a result of a physical examination made of the defendant.Defendant claimed he did not voluntarily submit to such examination but was compelled to submit thereto against his will, and, therefore, his constitutional right against self-incrimination had been violated.This court held that the admission of the testimony of the physician of the results of such physical examination of the defendant did not violate sec. 8, art. 1, of the Wisconsin constitution, and in support of such conclusion quoted from the opinion of Mr. Justice Holmes in Holt v. United States, 1910, 218 U.S. 245, 252, 31 S.Ct. 2, 6, 54 L.Ed. 1021, as follows:

'It is objected that he did this under the same duress that made his statements inadmissible, and that it should be excluded for the same reasons.But the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.'

For additional authorities holding that constitutional provisions against self-incrimination are confined to testimonial utterances, see8 Wigmore on Evidence (3rd ed.) pp. 374-375, sec. 2265;Morgan, The Law of Evidence, 1941-1945, 59 Harv.L.Rev. 481, 523;Annotation164 A.L.R. 967, 972;State v. Duguid, 1937, 50 Ariz. 276, 72 P.2d 435;State v. Sturtevant, 1950, 96 N.H. 99, 70 A.2d 909;andState v. Cram, 1945, 176 Or. 577, 160 P.2d 283, 164 A.L.R. 952.

The question of whether the admission of testimony that a defendant, who is being prosecuted for drunken driving, refused to submit to a blood test or to provide a sample of urine for a urinalysis, would violate state constitutional provisions against self-incrimination has been passed upon by the courts of Iowa, Ohio, and Virginia.These courts are unanimous in holding that the admission of such testimony does not contravene the constitutional provisions of those state against self-incrimination.State v. Benson, 1941, 230 Iowa 1168, 300 N.W. 275;State v. Gatton, 1938, 60 Ohio App. 192, 20 N.E.2d 265;State v. Nutt, 1946, 78 Ohio App. 336, 65 N.E.2d 675;andGardner v. Commonwealth,...