State v. Griffin

• Decision Date: 13 August 1924
• Docket Number: 11573.
• Parties: STATE v. GRIFFIN.
• Court: South Carolina Supreme Court

124 S.E. 81

129 S.C. 200

STATE v. GRIFFIN.

No. 11573.

Supreme Court of South Carolina

August 13, 1924

Appeal from General Sessions Circuit Court of Greenville County; M F. Ansel, Judge.

Lillie Belle Griffin was convicted of an attempt to administer poison to another, and she appeals. Reversed and remanded for a new trial.

H. P Burbage and Dean, Cothran & Wyche, all of Greenville, for appellant.

D. B Stover, Co. Sol., of Greenville, for the State.

COTHRAN J.

Appeal from conviction and sentence under an indictment charging a violation of section 149, Criminal Code of 1912 (section 11, Criminal Code of 1922), making it a felony to attempt to administer poison to another. The alleged offense consisted in sprinkling paris green, a poison, upon the leaves of turnips growing in the garden of the prosecutor.

The principal circumstances, relied upon by the state to connect the defendant with the offense, were the unpleasant relations which existed between the parties, who were near neighbors the attempt to obliterate the tracks, when she was required by the sheriff to put her shoe in a track; the conformity of her shoe with a track, when it was placed therein by the sheriff, after he had forced her to remove it; and a line of tracks leading from the turnip patch, across a potato patch, and onto the back porch of the defendant's house. The sheriff testified that he made a search of the plaintiff's house and found no evidence of paris green; that he asked the defendant to go with him to the potato patch where the tracks were; that she complied; that some of the tracks had been disturbed; that he asked her to put her foot in the tracks; that she pretended to do so, but would not put her foot in the track in the right way (or, as another state witness testified, "Defendant would not put her foot in the track, as requested by the sheriff"); that he made her sit down on the grass, and take off her shoe; that it fitted the track, presumably being adjusted by the sheriff.

The exceptions raise the following questions, which alone we deem it necessary to consider: (1) Was the testimony of the sheriff admissible, to the effect that he compared the shoe of the defendant with the tracks in the potato patch, and that it fitted, when it appeared that he had forced the defendant to remove her shoe, and made the adjustment himself? (2) Was the testimony of the sheriff admissible, to the effect that he compelled the defendant to put her foot in the track, and that she would not do it in the right way?

It is forced upon our attention, upon reading the record for appeal, that the defendant's attorney made no objection to the testimony of the sheriff, as to either fact mentioned above. A strict enforcement of the rule would preclude the defendant from now raising either question; but as no point of this has been made by the solicitor, who has argued the questions upon the merits, we will as a matter of grace, follow the rule declared in State v. McNinch, 12 S.C. 89:

"This court is bound, in a capital case [and we think equally so in a case of felony involving the deprivation of the defendant's liberty], to take notice, in behalf of the accused, of any error apparent upon the record by which the prisoner has been deprived of any of the substantial means of enjoying a fair and impartial trial."

As to the first question: Touching the admissibility of testimony of the sheriff as to his comparison of the shoe with the track. The evidence was admissible upon any one of the following grounds:

(a) Its admission was not a violation of the defendant's constitutional privilege of immunity from testimonial compulsion.

(b) An officer having a prisoner under arrest, suspected of a crime, has the right, and it is his duty, to search him for weapons, means of escape, or evidence connecting him with the crime which has been committed; the evidence under such circumstances is lawfully obtained.

(c) Even if unlawfully obtained, the article secured is admissible in evidence, as evidence in and of itself.

The objection to its admissibility, is that it contravenes the clause in the Constitution (article 1, § 17) which provides:

"Nor shall any person * * * be compelled in any criminal case to be a witness against himself."

It is remarkable that a constitutional provision, so vital to the personal liberty of a citizen, should, by a literal construction, be susceptible of the interpretation, that the privilege arises only in a prosecution for a criminal offense against the defendant himself, upon the occasion of his being compelled to take the stand as a witness. It has been so held in a number of cases, cited in 40 Cyc. 2539. But taken in connection with the ancient principle of evidence, that one shall not be compelled, in any proceeding, to make disclosures or to give testimony which may tend to incriminate him, or subject him to fines, penalties, or forfeitures, to be used against him in a criminal proceeding subsequently instituted, it has come to be construed, as declared by the Supreme Court of the United States in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, thus:

"The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime."

The privilege, we think, should be extended even further than this, and held to cover testimonial compulsion under any circumstances. The line of cleaverage is whether the proposed evidence is the testimony of the defendant, or evidence in itself, unaided by any statement of the defendant.

The distinction is clearly drawn by Mr. Wigmore, in volume 4 (1st Ed.) § 2664:

(1) "It follows that the production of documents or chattels by a person (whether ordinary witness or party witness) in response to a subp na, or to a motion to order production, or to other form of process treating him as a witness (i. e., as a person appearing before the tribunal to furnish testimony on his moral responsibility for truth telling), may be refused under the protection of the privilege; and this is universally conceded. 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 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 identity, or authenticity, or origin of the articles produced.

(2) "It follows, on the other hand, 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; for obviously the proof of their identity, or 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."

In the case at bar the defendant was not being treated as a witness; the shoe and the comparison of the shoe with the track were not the testimony of the defendant, but of the sheriff, distinct from anything she may have said or done; the shoe was obtained from her control without the use of any process against her as a witness; she was not necessary to establish its authenticity, identity, or origin, which facts were established by the testimony of the sheriff. The point is very strongly stated in State v. Flynn, 36 N.H. 64, cited by Mr. Wigmore:

"Its ground [of the objection] is, rather, that information obtained by means of a search warrant, in a case not authorized by the Constitution, is not competent to be given in evidence, because it has been obtained by compulsion from the defendant himself, in violation of the clause of the Constitution, which provides that no person shall be compelled to furnish evidence against himself. * * * It seems to us an unfounded idea that the discoveries made by the officers and their assistants, in the execution of process, whether legal or illegal, or where they intrude upon a man's privacy without any legal warrant, are of the nature of admissions made under duress, or that it is evidence furnished by the party himself upon compulsion. The information thus acquired is not the admission of the party, nor evidence given by him, in any sense. The party has in his power certain mute witnesses, as they may be called, which he endeavors to keep out of sight, so that they may not disclose the facts which he is desirous to conceal. By force or fraud access is gained to them, and they are examined, to see what evidence they bear. That evidence is theirs, not their owners. * * * It does not seem to us possible to establish a sound distinction between

that case, and the case of the counterfeit bills, the forger's implements, the false keys, or the like, which have been obtained by similar means. The evidence is in no sense his." Supporting the very clear theory of Mr. Wigmore is the case of Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A. L. R. 1159, the latest decision upon the subject: The Fifth Amendment, as its terms import, is intended to secure the citizen from compulsory testimony against himself. It protects from extorted confessions or examinations in court proceedings by compulsory methods; and, we think, from forced conduct outside of court proceedings, which may be presented as evidence.

A comparison of the cases of Boyd v. U. S., 116 U.S 616, 6 S.Ct. 524, 29 L.Ed. 746, and Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575, makes clear the distinction between compelling the defendant to produce books...