State v. Gatton

• Decision Date: 12 May 1938
• Citation: State v. Gatton, 60 Ohio App. 192, 20 N.E.2d 265 (Ohio App. 1938)
• Parties: STATE v. GATTON.
• Court: Ohio Court of Appeals

20 N.E.2d 265

60 Ohio App. 192

STATE v. GATTON.

Court of Appeals of Ohio, Ninth District, Wayne.

May 12, 1938

Syllabus by the Court.

The privilege against self-incrimination as guaranteed by the Ohio Constitution(Section 10, Article I), applies only to disclosure by utterance, oral or written.

Edwin S. Wertz and William H. H. Wertz, both of Wooster, for appellant.

Raymond O. Morgan, Pros.Atty., of Wooster, for appellee.

STEVENS Presiding Judge.

The defendant was charged by affidavit with violation of Section 6296-30, General Code, by operating a motor vehicle upon a public highway in Wayne county, Ohio, while in a state of intoxication, or under the influence of alcohol, narcotics or opiates.

Trial to a jury resulted in the return of a verdict of guilty, and from the judgment entered upon that verdict, appeal on questions of law lodges the case in this court for review.

Numerous errors are assigned, principal of which are:

1.Error in the admission and rejection of evidence.

2.Error in the charge of the court.

3.That the verdict and judgment are manifestly against the weight of the evidence.

4.Misconduct of the prosecuting attorney in argument.

The first assignment of error has to do principally with evidence, admitted by the court, bearing upon the following situation: After defendant's arrest and confinement in jail, request was made of him by a deputy sheriff that he submit to having either a blood test or a urinalysis made, to determine the amount of alcohol in his system.This the defendant refused to do.At the trial, evidence was admitted over the objection of defendant, showing the request to submit to such examination, and defendant's refusal to accede to that request; and in argument by the prosecutor the jury was urged to consider defendant's refusal to submit to either examination as an inference of the guilt of the defendant.

It is argued by defendant that the admission of such evidence over his objection, and the reference to it in argument, contravened the constitutional right of defendant as defined by Section 10 of Article I of the Constitution of Ohio, by requiring the defendant to testify against himself.

That section of the Constitution as it now exists, in part provides:

'* * * No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be the subject of comment by counsel. * * *'

The Constitution of 1802, Section 11, Article VIII, in part provided:

'That in all criminal prosecutions the accused * * * shall not be compelled to give evidence against himself * * *.'

The Constitution of 1851, Section 10, Article I, in part provided:

'* * * No person shall be compelled, in any criminal case, to be a witness against himself * * *.'

The question thus presented concerns the admissibility of evidence of the request made of defendant, and his refusal to accede to that request.If such evidence was admissible, then, of course, there was no error in the prosecutor's comment thereon.If it was inadmissible, the comment of the prosecutor aggravated the error of its admission.

We are required to inquire into and ascertain what is meant by the provision of the Constitution'No person shall be compelled, in any criminal case, to be a witness against himself.'Did the court, when it permitted the state to show that demand had been made upon defendant to submit to examination, and defendant's refusal to so submit, compel the defendant to be a witness against himself?

Under the title 'Self-Crimination,' 1 Greenleaf on Evidence, 16th Ed., Section 469 e, the following is contained:

'The scope of the privilege, in history and in principle, includes only the process of testifying, by word of mouth or in writing, i. e. the process of disclosure by utterance.It has no application to such physical, evidential circumstances as may exist on the witness' body or about his person.The privilege does not rest on the extreme notion that a guilty person is entitled to conceal as much as he can of the evidence of his crime; but on the notion that he should not be made to confess it out of his own mouth.Nevertheless, in the last generation a false and sentimental tenderness for the guilty accused has created a tendency in some quarters to extend the privilege in ways unimagined by those who laid its foundations; and the question is now often raised whether the privilege does not protect an accused person from the inspection or search or exhibition of his person.In the great majority of jurisdictions this extension has received no sanction; for example, the accused...