Garcia v. State
| Decision Date | 06 October 1924 |
| Docket Number | Criminal 566 |
| Citation | 26 Ariz. 597,229 P. 103 |
| Parties | MANUEL GARCIA and JOSE PEREZ, Appellants, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge. Affirmed.
Mr. O Gibson, for Appellants.
Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson and Mr. E. W. McFarland, Assistant Attorneys General, for the State.
The appellants by the verdict of the jury were found guilty of murder in the first degree, and their punishment fixed at imprisonment for life. They were sentenced accordingly. They appeal from the judgment and the order overruling their motion for a new trial.
We pass by without discussing the first assignment of error to the effect that the diagram of grounds and buildings, used by the prosecution's witnesses to illustrate their testimony was not introduced in evidence, and is not available on appeal to aid this court, for the reason the appellants made no objection to the use of such diagram, but on the contrary used it for the same purpose. If appellants wanted it made a part of the record they should have offered it in evidence.
The party or parties who committed the homicide, also at the same time, broke into and robbed the commissary of the John Slaughter ranch, situate in Cochise county, not far from the city of Douglas. The prosecution introduced in evidence, over appellants' objection, a piece of broken glass taken from the front door of the commissary, on which was a thumbprint and some blood stains. The objection made to its introduction was that it had not been properly identified, and further it was not shown to be in the same condition when photographed as it was in when removed from the commissary door. There were three witnesses who testified they saw the piece of glass before it was removed from the door. They identified it by its peculiar shape, the location in it of a crack, by a finger-print, and by blood stains. It was removed from door by one Kemp or Camp, and placed in a cigar-box. On May 5th, the day following the homicide, it was given over by him to A. B. Murchison, who testified that it remained in his custody until the trial. This, we think, was ample identification of the piece of glass. If its introduction was objected to by appellants, they do not cite us to the place in the record where the objection was preserved. While no witness said in so many words it was, at the trial, or when it was photographed, in the same condition it was in before it was removed from the door of the commissary, that is the natural inference from the testimony. Appellants had an opportunity to ask witnesses if the condition of the glass was the same, but did not do so. The contention that the piece of glass was improperly admitted in evidence is without merit.
Police Sergeant Murchison, of the city of Douglas, took the finger-prints of appellants the day following their arrest, and a photograph of the thumb-print of Garcia so taken was introduced in evidence and identified by finger-print experts as being identical with a photograph of the thumb-print on the piece of glass taken from the door of the commissary. It is objected that the finger-print was obtained by the officer by false representations made to Garcia, who believed that all that was wanted was his signature; and further that the officer did not advise him of his rights before such print was taken. This assignment is based upon that provision of our Constitution which says:
"No person shall be compelled in any criminal case to give evidence against himself." Section 10, art. 2.
The officer testified that he informed appellants he was going to take their finger-prints for future use before he did so, and that they made no objection whatever. It is urged that appellants did not know what was wanted with the finger-prints, and that the officer should have advised them that the prints would likely be used as evidence against them.
We do not think the appellants' knowledge of the effect of the act is the test of admissibility. If it was submitted to without objection, and not under coercion or compulsion, the provision of the Constitution cited was not violated. The appellants were not compelled to give evidence against themselves. The rule laid down in Moon v. State, 22 Ariz. 418, 16 A.L.R. 362, 198 P. 288, is that where a party voluntarily suffers his finger-prints to be taken, no constitutional right is violated in introducing photographs thereof in evidence. We believe no court or law-writer has undertaken to announce a general rule by which to determine when the privilege against self-incrimination is violated; but that the privilege was not violated in the present case seems very clear. See 4 Wigmore, § 2265, for statement of the limits of the privilege and the cited cases in note; also, Underhill's Criminal Evidence, 3d ed., 1129.
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