Thornton v. State

• Decision Date: 21 March 1903
• Citation: 93 N.W. 1107,117 Wis. 338
• Parties: THORNTON v. STATE.
• Court: Wisconsin Supreme Court

117 Wis. 338

93 N.W. 1107

THORNTON

v.STATE.

Supreme Court of Wisconsin.

March 21, 1903.

Error to Municipal Court, Eastern District of Waukesha County; D. S. Tullar, Judge.

Owen Thornton was convicted of crime, and brings error. Affirmed.

A writ of error to review conviction and sentence for assault with intent to commit rape. The testimony of the complaining witness was generally to the effect that as she was going home from church in the city of Waukesha, about 9 o'clock in the evening of March 2, 1902, she was accosted by plaintiff in error with the request that he might escort her home, which she repudiated indignantly; whereupon, after a few words, he made improper proposals to her, and, seizing her, threw her down and made the attempt constituting the offense charged; but, upon her outcry for help and threat of her husband's vengeance, he fled. The defense rested mainly on evidence of the plaintiff in error as to his conduct that evening, tending to prove an alibi, in some of the details of which he was confirmed by other evidence. Identification by the complaining witness was positive, but, to confirm it, plaintiff's shoe was taken after his arrest and compared with tracks in the snow at the place of the alleged assault, with which it was claimed to correspond.C. E. Armin, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., for the State.

DODGE, J. (after stating the facts).

1. The first error assigned is upon admitting evidence of comparison with the tracks left in the snow near the place of the assault of the shoe of the accused, which he gave to the deputy sheriff upon request, after his arrest. The objection urged is that thereby results an invasion of personal rights guarantied by two clauses of our Constitution, namely, section 8, art. 1: No person “shall be compelled in any criminal case to be a witness against himself”; and section 11, art. 1: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.” The constitutional restrictions are but the expression of the unwritten common–law rights which had come to be recognized in England, in revolt against the thumbscrew and the rack of early days. The exact origin of their full establishment is said to be uncertain, but that they had become so established is beyond doubt. Perhaps their earliest complete expression, at least the most satisfactory one, is to be found in the opinion of Lord Camden in Entick v. Carrington, 19 Howard, St. Tr. 1030. The subject is discussed at large in Boyl v.. United States, 116 U. S. 616, 627, 6 Sup. Ct. 524, 29 L. Ed. 746,Brown v. Walker, 161 U. S. 591, 596, 16 Sup. Ct. 644, 40 L. Ed. 819, and Bram v. United States, 168 U. S. 532, 545, 18 Sup. Ct. 183, 42 L. Ed. 568. This rule and practice of the common law was crystallized and expressed in the fifth amendment to the Constitution of the United States in words identical with those above quoted from our own Constitution. The meaning and force of that expression was early discussed by Chief Justice Marshall upon the trial of Aaron Burr, 1 Burr's Tr. 245, in which he said: “It is certainly not only a possible, but a probable, case, that a witness, by disclosing a single fact, may complete the testimony against himself, and to a very effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself would be unavailing, but all other facts without it would be insufficient. While that remains concealed in his own bosom, he is safe, but draw it thence and he is exposed to a prosecution. The rule that declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description.” Thenceforward it has become established by almost unanimous concurrence of opinion that the rights intended to be protected by this constitutional provision are so sacred, and the pressure so great towards their relaxation in case where suspicion of guilt is strong and evidence obscure, that it is the duty of the courts to liberally construe the prohibition in favor of private rights, and to refuse to permit those first and doubtful steps which may invade it in any respect. Boyd v. United States, supra; Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110; Bram v. United States, supra; Emery's Case, 107 Mass. 172, 9 Am. Rep. 22;People ex rel. Taylor v. Forbes, 143 N. Y. 219, 38 N. E. 303;State v. Height (Iowa) 91 N. W. 935. In pursuance of this policy of construction, it has become fully established that the prohibition against one's being compelled to be a witness against himself should not be limited to exclusion of merely oral statements against himself; that if the link in the evidence, which, under the language of Chief Justice Marshall, he could not be required to furnish, was to be furnished by some fact, document, or property which he had a right to hold secret, the mantle cast about him by the Constitution was as much rent by requiring him to disclose that secret fact otherwise, as by word of mouth. One of the latest cases, presenting an exhaustive and well–reasoned opinion on the subject, by McLain, J., is State v. Height, supra, where one charged with rape was required to submit to a medical examination to ascertain the fact that he was suffering from a venereal disease, such as the prosecuting witness found herself afflicted with a short time after the alleged crime. It was there held that the rule of the common law––Iowa having no express constitutional inhibition like ours––prohibited compulsion to disclose this fact, constituting, as it did, a link in a chain of circumstantial evidence which might lead to his conviction. A similar case in principle is People v. McCoy, 45 How. Prac. 216, where a woman charge with infanticide was required to submit to a physical examination which enabled physicians to testify that she apparantly had recently been pregnant and delivered of a child. This was held to be in violation of the spirit and meaning of the constitutional inhibition declaring that no person shall be compelled in any criminal case to be a witness against himself. The court said: “They might as well have sworn the witness, and compelled her, by threats, to testify that she had been pregnant and been delivered of the child, as to have compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and been recently delivered of a child.”

While, however, the Constitution, in perpetuation of the rules of the common law, must be held to protect one from being compelled to disclose any criminatory fact, either by words or by surrender of papers, documents, or other effects, which, in the nature of things, he has a right to keep secret, it cannot be held to exclude those sources of evidence which have always been recognized as legitimate. Because a fact pertains to or is connected with the person of an accused, it is not necessarily secret. Of course, the personal appearance of one, his obvious physical characteristics and his attire, are things usually open to observation by others, and, from time immemorial, testimony by those who have observed them has been received, and has been considered in no wise to invade the privacy of the person observed. How far these opportunities for observation may be coerced when one is in custody has been the subject of discussion under many aspects. That a man's head is bald is a fact ordinarily observed and known by many who come in contact with him. Does it not thereby cease to be one of those private, secret facts which it is an invasion of his right to have observed against his will? May he not, when in custody, be required to remove his hat and thus give the opportunity of observation which has commonly existed for those coming in contact with him? It seems that this must be so. There are, of course, extreme cases in both directions about which courts would hardly doubt. Those mentioned from New York and Iowa above, of medical examination, in one case to ascertain the fact of recent pregnancy and parturition, in the other of recent venereal disease, are far to the one extreme. The illustrations of the removal of the hat, or removal of a veil for opportunity to observe the face, are perhaps as extreme in the other direction. In line, however, with such illustrations, are the many cases where an accused present in court has been held properly required to stand up to facilitate a witness in identifying him, or to enable observation of some obvious fact in his appearance. State v. Johnson, 67 N. C. 55;People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741;Commonwealth v. Whitman, 121 Mass. 361;People v. Goldenson, 76 Cal. 328, 19 Pac. 161;Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717; Rex v. Watson, (1817) 2 Starkie, 116; and Rex v. Deering, 5 Car. & P. 165. In State v. Garrett, 71 N. C. 85, 17 Am. Rep. 1, one charged with murder had said that the deceased was accidentally burned to death, and that she had burned her hand in trying to put the fire out. Her hand being wrapped up, she was compelled, against her protest, by the coroner, to unwrap the hand, and evidence that it showed no signs of burning was held admissible on the trial. In State v. Prudhomme, 25 La. Ann. 522, it was held permissible to require accused to take...