State v. Height

• Decision Date: 23 October 1902
• Citation: 117 Iowa 650,91 N.W. 935
• Parties: STATE v. HEIGHT.
• Court: Iowa Supreme Court

117 Iowa 650

91 N.W. 935

STATE

v.HEIGHT.

Supreme Court of Iowa.

Oct. 23, 1902.

Appeal from district court, Linn county; Wm. G. Thompson, Judge.

Prosecution for the crime of rape. Verdict of guilty. From judgment thereon, defendant appeals. Reversed.E. H. Crocker, for appellant.

Chas. W. Mullan, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

McCLAIN, J.

1. The crime is charged to have been committed by having sexual intercourse with a female under the age of consent. The evidence tends to show that the prosecutrix, a child 10 years of age, did not make complaint of the alleged outrage until about 11 days after its commission, and then, on examination by physicians, was found to be affected with venereal disease. The prosecuting attorney claimed in his opening statement that he would be able to show that the defendant at the time of the alleged intercourse was afflicted with the same disease, which he might have communicated to prosecutrix at that time, and thereby produced in her the diseased condition which was found on such examination; and for the purpose of establishing this fact he called as witnesses certain physicians who had made an examination of defendant's private parts while he was confined in jail under arrest for the crime charged, and found that he then had, or had recently had, the disease in question. It is contended for appellant that this physical examination of him was made without his consent and against his protest, and, proper objections having been made to the introduction of the evidence, it is now argued, first, that the testimony of these physicians is with reference to a privileged communication. But it is enough to say in answer to this contention that the physicians were not called by defendant, and that no communications were made to them by the defendant in that capacity; nor did the defendant, even if he submitted to the examination, do so with the idea that the physicians making it were acting as his physicians. The objection to the testimony that it disclosed a privileged communication was not well taken. People v. Glover, 71 Mich. 303, 38 N. W. 874. In any event, the privilege is not available to defeat the punishment of crime. State v. Grimmell (Iowa) 88 N. W. 342.

It is further argued that the testimony related to a confession by the defendant which was not voluntary, and that the evidence should have been excluded for this reason. There is ample ground in the record for saying that, if the testimony did relate to a confession, then the confession was not so far voluntary on the part of the defendant as to render it admissible. But defendant made no confession of guilt, nor admission that he was afflicted with the disease for which he was examined. And it has been well settled by decisions without conflict, from the earliest rulings on the subject to the present time, that, even though a confession be involuntarily made, inculpating facts discovered by means thereof may be established against the defendant. Rex v. Warickshall, 1 Leach, 263; Rex v. Lockhart, Id. 386; Rex v. Griffin, Russ. & Ry. 151; Com. v. Knapp, 9 Pick. 496, 20 Am. Dec. 491;State v. Motley, 7 Rich. Law, 327. There is nothing, therefore, in the rule excluding involuntary confessions to prevent the physicians who made the examination of defendant's person from testifying as to his condition with reference to having venereal disease.

But while the condition of defendant's privateswas not, on the one hand, a confession or an admission, nor, on the other, an independent circumstance discovered by means of a confession or admission, it is nevertheless necessary to inquire further as to the admissibility of the evidence thereof, in view of the fact that it appears without reasonable doubt from the evidence that defendant was compelled to submit to such examination, and was therefore compelled to furnish evidence against himself. The examination by physicians was made under the direction of the prosecuting attorney, and was at first resisted by defendant, who finally consented thereto, if at all, only after he had been told by one of the officers who made the arrest, and who was present, acting under the direction of the county attorney, and in his presence, that the state had the right to require such an examination to be made, and that the defendant must submit to it. The showing is amply sufficient to indicate legal duress, and we must therefore inquire whether the evidence against defendant secured by such duress, and which could not have been secured otherwise, was admissible over defendant's objection.

In many of the states are found constitutional provisions similar to those of the fifth amendment to the federal constitution, which, of course, has no application to proceedings in state courts (Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 21, 31 L. Ed. 80;Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615;Twitchell v. Com., 7 Wall. 321, 19 L. Ed. 223), to the effect that the defendant in a criminal prosecution shall not be compelled to be a witness against himself; and it is argued by counsel for the prosecution that, even if such provision would render the evidence in question incompetent in such states, the absence of a like provision from our constitution renders such an objection unavailing in our courts, for Code, § 5484, which seems to contain the only statutory language on the subject, simply provides that “defendants in all criminal proceedings shall be competent witnesses in their own behalf but cannot be called as witnesses by the state.” Perhaps this language is not broad enough to cover the general ground of the usual constitutional guaranty, but we cannot concede that there is in the constitution of our state no guaranty against inquisitorial proceedings for the purpose of compelling a defendant to disclose criminating evidence. Our constitution does explicitly provide (article 1, § 9) that “no person shall be deprived of life, liberty or property without due process of law,” and the term “due process of law” has received by this court, as well as by all the courts of this country, a very broad and liberal interpretation. In Foule v. Mann, 53 Iowa, 42, 3 N. W. 814, it is said (quoting from Westervelt v. Gregg, 12 N. Y. 209, 62 Am. Dec. 160) that it “urdoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights,” and (quoting from Bank v. Okely, 4 Wheat. 235, 4 L. Ed. 559) that it was intended thereby “to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private rights and distributive justice.” In Trustees of Griswold College v. City of Davenport, 65 Iowa, 633, 22 N. W. 904, we said: “The rule in respect to due process of law, stated in a general way, is said to be this: That everyone is entitled to the protection of ‘those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions.’ ” But further citation of authorities is not necessary to establish the general proposition that fundamental principles of judicial procedure, whether in civil or criminal cases, as they existed and were recognized in the courts of England and the American colonies prior to the adoption of the federal and state constitutions, are intended to be preserved by this guaranty of due process of law, and that, while forms may be changed, essential guaranties cannot be taken away, even by attempted legislative enactment. For instance, the rule of evidence that involuntary confessions cannot be shown as against the defendant in a criminal prosecution is not only not expressly recognized anywhere in our constitution, but it is not even embodied in the statutory provisions with reference to evidence; and yet can any one suppose that an act of the legislature abrogating this rule, and allowing confessions of a defendant, extorted by promises or threats, to be shown in a criminal proceeding, would be upheld? A complete answer to any such legislation would be that it deprived the accused of one of the protections afforded him from time immemorial by rules of evidence so fully recognized and so fundamental with reference to criminal procedure that it must be contrary to due process of law in criminal cases. In the federal courts, and in the courts of those states whose constitutions contain guaranties against compelling one accused of crime to be a witness against himself, it is well settled that in neither criminal nor civil cases can a witness be required to give self–criminating evidence. Emery's Case, 107 Mass. 172, 9 Am. Rep. 22;Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110;State v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125, 15 L. R. A. 676. It is true that in most of the cases in which the maxim, “Nemo tenetur seipsum accusare,” has been considered with reference to its effect as applied to statutory provisions tending to deprive the witness of the benefit thereof, the constitutional provisions against compelling the defendant in a criminal proceeding to testify against himself have been referred to; but, in determining whether such an express constitutional guaranty is essential to the preservation of the principle as a fundamental rule of criminal procedure, it is pertinent to suggest first that, no matter how restricted the constitutionalguaranty, it has been given the same broad and liberal interpretation. Thus it is held that although the language of the constitutional provision may simply be that no person shall be required to testify against himself in a criminal case, yet this guaranty amounts to a prohibition against requiring a witness in a civil case to disclose facts tending to show him guilty of a crime. State v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125, 15 L. R. A. 676. Such guaranty is...