State v. Cram

Decision Date15 May 1945
Citation176 Or. 577,160 P.2d 283
PartiesSTATE <I>v.</I> CRAM
CourtOregon Supreme Court

BELT, C.J., dissenting.

                  See 14 Am. Jur. 879
                  22 C.J.S., Criminal Law, § 649

Before BELT, Chief Justice, and ROSSMAN, BAILEY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Yamhill County.


Carroll Loren Cram was convicted of manslaughter and he appeals.


Francis E. Marsh, of McMinnville (Vinton, Marsh & Marsh, of McMinnville, on the brief), for appellant.

Earl A. Nott, District Attorney for Yamhill County, of McMinnville, for respondent.



The defendant, Carroll Loren Cram, was charged with and convicted of the crime of manslaughter committed in Yamhill county on March 26, 1944, while engaged in the doing of an unlawful act, to wit: Driving an automobile on a highway of the state of Oregon "carelessly and heedlessly in wilful and wanton disregard of the rights and safety of others and without due caution or circumspection, and at a speed and in a manner so as to endanger * * * the person or property of another, and while under the influence of intoxicating liquor" and by reason thereof brought about the death of Wanelda Henderson. Defendant has appealed.

1. The indictment alleged the commission of two unlawful acts by defendant: (1) Reckless driving, in the language of § 115-319, O.C.L.A., and § 23-406, O.C.L.A., as amended by chapter 439, Oregon Laws 1941, and (2) driving while under the influence of intoxicating liquor, in the language of § 115-318, O.C.L.A. See State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290; State v. Lockwood, 126 Or. 118, 124, 268 P. 1016; State v. Miller, 119 Or. 409, 243 P. 72. As a consequence of one or both of these unlawful acts, the decedent met her death. Both were properly included in the indictment as a basis on which to predicate the charge of manslaughter. State v. Laundy, supra; State v. Lockwood, supra; § 26-711, O.C.L.A.

In the accident out of which the instant charge arose the automobile which defendant was driving capsized and he was rendered unconscious and remained in that condition for about 48 hours. While still unconscious he was arrested and taken in custody by a state police officer; was treated for injuries by Dr. John Manning, a physician and surgeon of McMinnville, Oregon; and at the request of the police officer, Dr. Manning was induced to extract a sample of blood from the defendant for the purpose of having the same analyzed to determine its alcoholic content, if any. This sample was taken by the officer to Dr. Joseph Beeman, Portland, Oregon, and there analyzed by him. Dr. Beeman testified that the sample "contained 260 milligrams of alcohol per one hundred cc's".

This evidence was objected to by the defendant on two grounds: First, that the relationship of physician and patient existed between Dr. Manning and the defendant and any information derived by Dr. Manning relative to defendant was confidential and privileged, (this objection is not urged here) "and on the second ground that under section 12, Article 1 of the Bill of Rights of the Constitution of Oregon, to permit testimony of this kind to be introduced would be in violation of the section which provides no person shall be compelled in any criminal prosecution to testify against himself, and that this is to be taken either as an admission or confession or as evidence of a physical examination."

Section 12, article I of the Oregon constitution, provides that "No person shall be * * * compelled in any criminal prosecution to testify against himself." The language of the fifth amendment to the constitution of the United States (which is limited to the federal government) is that no person "shall be compelled in any criminal case to be a witness against himself". The constitutions of all the states of the Union, with the exception of New Jersey and Iowa, contain provisions against self-crimination. 8 Wigmore on Evidence, (3rd Ed.) § 2252 (see footnote to this section for excerpts from state constitutions). There is a variation of wording in these constitutional clauses. The protection is from "testifying", from "furnishing evidence", or from "being a witness". This difference in phrasing has not been considered important. What the framers of the various constitutions sought to accomplish was to place "beyond the reach of ordinary legislative alteration" the privilege against self-crimination "as already accepted, understood, and judicially developed in the common law." 8 Wigmore on Evidence, §§ 2252, 2263. (The third edition is referred to unless otherwise indicated).

"In the interpretation of the principle, nothing turns upon the variations of wording in the constitutional clauses; this much is conceded * * *. * * * These various phrasings have a common conception, in respect to the form of the protected disclosure. What is that conception?

"Looking back at the history of the privilege (ante, § 2250) and the spirit of the struggle by which its establishment came about, the object of the protection seems plain. It is the employment of legal process to extract from the person's own lips an admission of his guilt, which will thus take the place of other evidence. Such was the process of the ecclesiastical Court, as opposed through two centuries, — the inquisitorial method of putting the accused upon his oath, in order to supply the lack of the required two witnesses. Such was the complaint of Lilburn and his fellow-objectors, that he ought to be convicted by other evidence and not by his own forced confession upon oath.

* * * * *

"In other words, it is not merely any and every compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion. The one idea is as essential as the other.

"The general principle, therefore, in regard to the form of the protected disclosure, may be said to be this: The privilege protects a person from any disclosure sought by legal process against him as a witness." 8 Wigmore on Evidence, § 2263.

In Jones, Commentaries on Evidence, (2d Ed.), Vol. 6, § 2474, it is stated that the privilege against self-crimination "was established both on grounds of public policy and of humanity, `of policy, because it would place the witness under the strongest temptation to commit the crime of perjury, and of humanity, because it would be to extort a confession of truth by a kind of duress, every species and degree of which the law abhors.'" It is further stated that the provisions in the federal and state constitutions against self-crimination "are generally held to be declaratory of the common-law rule, neither limiting nor enlarging it."

Professor Wigmore would not limit the constitutional privilege against self-crimination to testimonial utterances. The protection to the individual is "from any disclosure sought by legal process against him as a witness." 8 Wigmore on Evidence, § 2263. The learned author includes within the orbit of the privilege "the production of documents or chattels by a person (whether ordinary witness or party-witness) in response to a subpoena, or to a motion to order production, or to other form of process treating him as a witness * * *. For though the disclosure thus sought be not oral in form, and though the documents or chattels be already in existence and not desired to be first written and created by a testimonial act or utterance of the person in response to the process, still no line can be drawn short of any process which treats him as a witness; because in virtue of it he would be at any time liable to make oath to the authenticity or origin of the articles produced." All or practically all, the authorities concede the correctness of this rule. § 2264, ibid.

On the other hand, Wigmore concludes "that documents or chattels obtained from the person's control without the use of process against him as a witness are not in the scope of the privilege, and may be used evidentially". Proof of their authenticity, or other circumstances affecting them, "may and must be made by the testimony of other persons, without any employment of the accused's oath or testimonial responsibility". Such documents and chattels are obtained "by physical search of the person or premises without calling upon the party for any act or utterance of his own." ibid. See also 22 C.J.S., Criminal Law, § 650, p. 995.

The only question before us for decision is whether the compulsory taking of the blood sample from the defendant and the admission of testimony disclosing its alcoholic content was a denial to the defendant of his privilege against self-crimination guaranteed by article I, § 12 of the constitution.

2. If the arrest of a prisoner is lawful, the officer making the arrest may search the person of the prisoner and take from him not only the instruments of the crime but also such articles as may be of use as evidence on the trial. The search is justifiable as incident to the lawful arrest. Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, 34 S.Ct. 341...

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