State v. Griswold

• Decision Date: 21 February 1896
• Citation: 67 Conn. 290,34 A. 1046
• Court: Connecticut Supreme Court
• Parties: STATE v. GRISWOLD.

34 A. 1046

67 Conn. 290

STATE

v. GRISWOLD.

Supreme Court of Errors of Connecticut.

Feb. 21, 1896.

Appeal from superior court Hartford county; Prentice, Judge.

Malcolm R. Griswold was convicted of arson and appeals. Affirmed.

Malcolm R. Griswold, a dentist practicing in Hartford, was arrested for setting fire to his office. On the trial a witness, Dr. F. C. Jackson, who was studying in defendant's office, testified that he was, and had been for some years, chief of letter carriers of the Hartford post office; that for several years the defendant rented a box in the Hartford post office, which he used in conducting a clandestine correspondence with a Mrs. Drake; that the box was rented in the assumed name of R. M. Thane; that about March 1, 1893, defendant had written in the presence of the witness, but in a disguised hand, an order to the post-office authorities, directing that letters addressed in certain other names should be placed in the box, and had signed the order, "Mrs. R. M. Thane"; that such names were assumed by the accused for the purpose of his correspondence with Mrs. Drake. Jacksou testified further that the defendant had in the office two pictures of Mrs. Drake, which he kept in a closet, and that on one occasion the defendant had told him that in the event of a fire he wanted those pictures saved. The fire occurred during the night of March 14, 1895. On the morning following, the defendant met Jackson in front of the burned building, and told him that there was a letter in the box which he wished Jackson to get and keep until he called for it. Upon arriving at the post office, Jackson found in the box a letter addressed to Mrs. R. M. Thane, and bearing the post-office mark, "Hartford, Conn., Mar. 14, 10 p. m., '95," showing the time when it was mailed,—the envelope being about the size and shape of a cabinet photograph. Jackson also gave further testimony tending to show a confession on the part of defendant as to his connection with the fire. After the arrest of the defendant, two police officers, without the knowledge of the defendant, and without warrant for seizure, were sent to search the defendant's new office. They found defendant's assistant in charge of the office, stated their errand, and were told to go ahead and make such search as was necessary. Upon a shelf in the closet they found the envelope referred to by Jackson, still unopened, though somewhat mutilated. This envelope and the picture inclosed were offered in evidence, and their admission was objected to on the ground that the seizure was in violation of the constitutional guaranty that the people shall be secure in persons, houses, papers, and possessions, from unreasonable searches and seizures, and on the further ground that their production in evidence was in violation of the constitutional provision that an accused person cannot be compelled to give evidence against himself. The defendant went on the stand, and denied that he had directed the envelope containing the picture to himself, under the assumed name of Mrs. R. M. Thane, or that he had hired the post-office box for himself, or that he was conducting a clandestine correspondence; claiming that he was simply acting as an intermediary, forwarding the letters to persons bearing those names. Upon cross-examination the counsel for the prosecution sought to elicit from the defendant testimony tending to show that he had traveled with Mrs. Drake under the name of R. M. Thane and wife; that he went to Old Point Comfort with her, and various other facts touching his relations with Mrs. Drake. This testimony was admitted under the objection of the defendant An expert was placed upon the stand for the purpose of showing that a certain anonymous letter introduced by the defendant was written by the witness Jackson. In rebuttal the prosecution placed upon the stand an expert who testified that the anonymous letter could not have been written by J. For the purpose of testing the knowledge and accuracy of the expert, counsel handed him a collection of slips of handwriting, asking the witness to tell how many different handwritings he found there; whether the slips were written by the same person or by different persons. This testimony was excluded by the court.

William C. Case and Henry D. Mildeberger, for appellant.

Arthur F. Eggleston, State's Atty., and J. Gilbert Calhoun, for the State.

ANDREWS, C. J. The defendant was tried to the jury upon an information charging him with the crime of arson, and in another count with setting fire to the same building with the intent to defraud an insurance company. Among other testimony, the state offered evidence of certain acts done by the accused, showing preparation for the fire, as well as his subsequent conduct, apparently influenced by the fact that he had set the fire, or had known that it was going to happen. To illustrate and explain this conduct, the state offered in evidence a small package, consisting of the envelope with the marks upon it, and its contents, which are described in the finding. It is admitted—and the fact is so—that this package was in its nature pertinent and admissible to be laid before the jury, and in connection with it the other testimony in the case became highly incriminatory evidence against the accused. His counsel objected to its being shown in evidence. The counsel said this article ought not to be exhibited in evidence to the jury, because of the manner in which it was found in the room of the accused and taken therefrom by the police officers; that such taking and production in evidence were in violation of the eighth and ninth sections of article 1 of the constitution of this state. When this objection was made the trial judge excused the jury, and, in their absence, proceeded himself to hear the evidence upon the questiou so raised. The accused testified, and was cross-examined. Other witnesses were also heard, and upon the evidence so taken the judge found that the office of the accused, at the time when this envelope was found by the police officers and taken away by them, was in the care and possession of one Butler, as the servant and agent of the accused, and that said Butler gave permission to the officers to enter the office, to make the said search therein, assisted them in making the search, and consented to the taking away by them of the said articles. The judge thereupon admitted them to be laid in evidence before the jury. This finding is, in effect, a decision that the search was not an unreasonable one, and that there was no "seizure" of anything, and that the accused must be holden to have consented to the taking away by the officers of the said articles. The evidence upon which this finding was made is not before us, and we are not able to review the finding, even if, for any cause, it was desirable to do so. Counsel for the accused argue that this finding, although it shows that Butler was in charge of the defendant's office at the time, does not show that he was the agent of the defendant for the purpose of admitting the police officers, and consenting to the search and to the taking away of the said articles. We must assume, notwithstanding this argument, that the precise objection made in this court was made in the superior court, and decided adversely to the defendant; otherwise the defendant has no standing to be heard here. This finding of the superior court might, perhaps, be treated as decisive of the first reason of appeal, because it shows that there has been no violation of the constitution of this state or of the United States.

We do not, however, place our decision on this ground alone. A constitution is that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised, and its provisions are the rule of conduct for those branches of the government which exercise the sovereign power. Both the sections cited by the defendant have reference to the security of the citizen as to his possessions, and as to his person. The eighth section forbids the legislature to enact any statute, and the courts from passing any rule, which would authorize any unreasonable search or seizure of the goods of a citizen, and the ninth forbids any legislation or rule of court which would compel any one accused of a crime to give evidence against himself. In this respect neither of the sections so cited has any application to this case. The act of the police was not directed, nor is it sought to be justified, by any statute, or by any rule of any court. The theory of the defendant is that that act was a trespass. For the present purposes, that theory may be granted to be the true one. And what then? The police officers would be liable, in a proper action, to pay to the defendant all damage they had done him. But that consequence does not affect the question now before us. It does, however, show that the eighth section of article 1 has no bearing upon the facts of this case. Indeed, the defendant hardly claims that the eighth section alone affects his objection. But he does claim that a search or a seizure may be so made that the production in evidence of any of his goods or possessions taken is to compel the accused to furnish evidence against himself, and in that way to become a violation of the ninth section of the first article of the constitution. This might be the result where the private papers of a suspected person were seized in order to be read to the jury as incriminating evidence against him. To reach this result the word "papers," in the eighth section of article 1, must be taken to mean writings,—not pieces of paper, as mere inanimate goods, but papers on which are written or printed words that may be shown in evidence as the words of the suspected man. In this sense a search or seizure of the "papers" of a citizen might be unreasonable, because it might lead to a violation of the provisions of the ninth section. In Boyd v. U....