State v. Cram

*578 BAILEY J. The defendant, Carroll Loren Cram, was charged with and convicted of the crime of manslaughter committed in Yamhill county on March 26, 1944, while engaged in the doing of an unlawful act, to wit: Driving an automobile on a highway of the state of Oregon “carelessly and heedlessly in wilful and wanton disregard of the rights and safety of others and without due caution or circumspection, and at a speed and in a manner so as to endanger * * * the person or property of another, and while under the influence of intoxicating liquor” and by reason thereof brought about the death of 'Wanelda Henderson. Defendant has appealed. 1. The indictment alleged the commission of two unlawful acts by defendant: (1) Reckless driving, in the language of § 115-319, O. C. L. A., and § 23-406, O. C. L. A., as amended by chapter 439, Oregon Laws 1941, and (2) driving while under the influence of intoxicating liquor, in the language of § 115-318, O. C. L. A. See State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290; State v. Lockwood, 126 Or. 118, 124, 268 P. 1016; State v. Miller, 119 Or. 409, 243 P. 72. As a consequence of one or both of these unlawful acts, the decedent met her death. Both were properly included in the indictment as a basis on Avhich to predicate the charge of manslaughter. Slate v. Laundy, supra; State v. Lockwood, supra; § 26-711, O. C. L. A.\ In the accident out of which the instant charge arose the automobile which defendant was driving capsized and he was rendered unconscious and remained in that condition for about 48 hours. While still unconscious he was arrested and taken in custody by a state police officer; was treated for injuries by Dr. John Manning, a physician and surgeon of McMinnville, Oregon; and, *579 at the request, of the police officer, Dr. Manning was induced to extract a sample of blood from the defendant for the purpose of having the same analyzed to determine its alcoholic content, if any. This sample was taken by the officer to Dr. Joseph Beeman, Portland, Oregon, and there analyzed by him. Dr. Beeman testified that the sample “contained 260 milligrams of alcohol per one hundred ec’s”. U, V- ^ r This evidence was objected to by the defendant on two grounds: First, that the relationship of physician and patient existed between Dr. Manning and the defendant and any information derived by Dr. Manning relative to defendant was confidential and privileged, (this objection is not urged here) “and on the second ground that under section 12, Article 1 of the Bill of Bights of the Ckmstitution of Oregon, to permit testimony of this kind to be introduced would be in violation of the section which provides no person shall be compelled in any criminal prosecution to testify against himself, and that this is to be taken either as an admission or confession or as evidence of a physical examination.” Section 12, article I of the Oregon constitution, provides that “No person shall be * * ® compelled in any criminal prosecution to testify against himself.” The language of the fifth amendment to the constitution of the United States (which is limited to the federal government) is that no person “shall be compelled in any criminal case to be a witness against himself”. The constitutions of all the states of the Union, with the exception of New Jersey and Iowa, contain provisions against self-crimination. 8 Wig-more on Evidence, (3rd Ed.) § 2252 (see footnote to this section for excerpts from state constitutions). There is a vari *580 ation of wording in these constitutional clauses. The protection is from “testifying”, from “furnishing evidence”, or from “being a witness”. This difference in phrasing has not been considered important. What the framers of the various constitutions sought to accomplish was to place “beyond the reach of ordinary legislative alteration” the privilege,! against self-crimination “as already accepted, understood, and judicially developed in the common law. ’ ’V 8 Wigmore on Evidence, §§ 2252, 2263. (The third edition is referred to unless otherwise indicated). “In the interpretation of the principle, nothing turns upon the variations of wording in the constitutional clauses; this much is conceded * * * . * * * These various phrasings have a common conception, in respect to the form of the protected disclosure. What is that conception? “Looking back at the history of the privilege (ante, § 2250) and the spirit of the struggle by which its establishment came about, the object of the protection seems plain. It is the employment of legal process to extract from the person’s own lips an admission of his guilt, which will thus take the place of other evidence. Such was the process of the ecclesiastical Court, as opposed through two centuries, — the inquisitorial method of putting the accused upon his oath, in order to supply the lack of the required two witnesses. Such was the complaint of Lilburn and his fellow-objectors, that he ought to be convicted by other evidence and not by his own forced confession upon oath. “In other words, it is not merely any and every compulsion that is the kernel of the privilege, in history and in .the constitutional definitions, but testimonial compulsion. The one idea is as essential as the other. *581 ‘ ‘ The general principle, therefore, in regard to the form of the protected disclosure, may be said to be this: The privilege protects a person from any disclosure sought by legal process against him as a witness.” 8 Wigmore on Evidence, ^2263. In Jones, Commentaries on Evidence, (2d Ed.), Vol. 6, § 2474, it is stated that the privilege against self-crimination “was established both on grounds of public policy and of humanity, ‘of policy, because it would place the witness under the strongest temptation to commit the crime of perjury, and of humanity, because it would be to extort a confession of truth by a kind of duress, every species and degree of which the law abhors.’ ” It is further stated that the provisions in the federal and state constitutions against self-crimination “are generally held to be declaratory of the common-law rule, neither limiting nor enlarging it.” Professor Wigmore would not limit the constitutional privilege against self-crimination to testimonial utterances. The protection to the individual is “from any disclosure sought by legal process against him as a> witness.” 8 Wigmore on Evidence, § 2263. The learned author includes within the orbit of the privilege “the production of documents or chattels by a person (whether ordinary witness or party-witness) in response to a subpoena, or to a motion to order production, or to other form of process treating him as a witness * * *. 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 act or utterance 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 *582 any time liable to make oatb to the authenticity or origin of the articles produced. ’ ’ All or practically all, the authorities concede the correctness of this rule. § 2264, ibid. On the other hand, Wigmore concludes “.that documents or chattels obtained from the person’s control without the use of process against him as a ivitness are not in the scope of the privilege, and may be used evidentially”. Proof of their 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”. Such documents and chattels are obtained “by physical search of the person or premises without calling upon the party for any act or utterance of his own.” ibid. See also 22 C. J. S., Criminal Law, § 650, p. 995. The only question before us for decision is whether the compulsory taking of the blood sample from the defendant and the admission of testimony disclosing its alcoholic content was a denial to the defendant of his privilege against self-crimination guaranteed by-article I, § 12 of the constitution. If the arrest of a prisoner is lawful, the officer making the arrest may search the person of the prisoner and take from him not only the instruments of the crime but also such articles as may be of use as evidence on the trial. The search is justifiable as incident to the lawful arrest. Weeks v. United States, 232 U. S. 383, 58 L. Ed. 652, 34 S. Ct. 341, L. R. A. 1915B 834. Ann Cas. 1915C 1177; State v. Laundy, supra (103 Or. at 496). The accused, upon his arrest, may be required to do many things without having his constitutional rights against self-crimination invaded. For the pur *583 pose of identification lie may be required to stand up in court; to appear at the scene of the crime (3 Wharton, Crim. Ev., 11th Ed., § 1141); to put on a blouse to see if it fits him (Holt v. United States, 218 U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, 20 Ann. Cas. 1138); to place a handkerchief over his face (Ross v. State, 204 Ind. 281, 182 N. E. 865); to stand up and remove his glasses (Rutherford v. State, 135 Tex. Crim. Rep. 530, 121 S. W. (2d) 342); to remove his coat and shirt and permit the jury to see scars on his body and to don a shirt introduced in evidence (State v. Oschoa, 49 Nev. 194, 242 P. 582); or to exhibit his arm so as to reveal tattoo marks thereon, which a previous witness has sworn were there (State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530). He may also be fingerprinted, photographed and measured under the Bertillon system. United States v. Kelly, 55 Fed. (2d) 67, 83 A. L. R. 122, and cases therein cited; Downs v. Swann, 111 Md. 53, 73 A. 653, 23 L. R. A. (N. S.) 739, 134 Am. St. Rep 586; Bartletta v. McFeeley, 107 N. J. Eq. 141, 152 A. 17; People v. Les, 267 Mich. 648, 255 N. W. 407, and authorities therein cited; Connors v. State, 134 Tex. Crim. Rep. 278, 115 S. W. (2d) 681. For other instances, see 8 Wigmore, § 2265, footnote 2. In Holt v. United States, supra, Mr. Justice Holmes, in writing the opinion for the court, stated: “Another objection is based upon an extravagant extension of the Fifth Amendment. A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statement inadmissible, and that it should be excluded for the same reasons. But the prohibition of compelling a man in a criminal court to be witness against himself is a *584 prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Moreover, we need not consider how far a court would go in compelling a man to exhibit himself. For when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent. Adams v. New York, 192 U. S. 585.” United States v. Kelly, supra, involved the question of the return to the defendant of fingerprints taken against his will. The court, in denying the petition, stated, among other things, that “Any restraint of the person may be burdensome. But some burdens must be borne for the good of the community. * * * The slight interference with the person involved in finger printing seems to us one which must be borne in the common interest.” In the case at bar it is conceded that the defendant was in custody and under lawful arrest at the time the blood sample was extracted from his veins. He was unconscious at the time. However, prior to the trial both he and his counsel were advised by the district attorney that the blood sample had been taken. No motion was made for its return or for the suppression of evidence concerning it. No objection was made at the trial by defendant to the admission of testimony as to the extraction of blood or the analysis thereof on the ground that article I, § 9, Oregon constitution, prohibiting unreasonable search or seizure, had been violated. Moreover, counsel for defendant stated on oral argument that he was not now urging that the blood sample had been seized in contravention of article *585 The constitution of the state of Ohio provides that 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. In State v. Gatton, 60 Ohio App. 192, 20 N. E. (2d) 265, the defendant was charged with operating a motor vehicle upon a public highway while in a state of intoxication. He refused to accede to a request for either a blood test or a urinalysis, and evidence was introduced of his refusal to submit to such examination. Defendant objected to this evidence on the ground that it controvened his constitutional right by requiring him to testify against himself. After quoting extensively from Greenleaf on Evidence, (16th Ed., § 469e) the court observed that the evidence offered was not required to be given by the defendant himself but was given by the deputy sheriff and by the doctor called to make the examination. “We are unable”, said the court, “to observe any merit in the defendant’s claim that the introduction of such evidence violated his constitutional rights, and we believe, and hold, that the constitutional inhibition against self-crimination relates only, as stated by Greenleaf, to disclosure by utterance. No such disclosure was required of defendant in this case.” State v. Gatton was decided by the Court of Appeals of Ohio on May 12, 1938. In 1936 the Common Pleas Court of Hamilton county, Ohio, a court much inferior to that of the Court of Appeals, decided the case of Booker v. Cincinnati, 5 Ohio Opin. 433. The facts in that case tended to show that a doctor required the accused to “walk along a line” and that he made a urinalysis, examined the breath and pupils of the eyes of the prisoner. The court stated that “assuming that *586 the defendant was compelled to submit to tests against his will, and Doctor Hyman based his opinion in part at least upon those tests, the testimony of Doctor Hyman was inadmissible.” The court, however, affirmed the judgment on the ground that the defendant had not shown that he was prejudiced by the admission of the physician’s testimony. In State v. Duguid, 50 Ariz. 276, 72 P. (2d) 435, the defendant was convicted of driving an automobile upon the public highways under the influence of intoxicating liquor. A chemical analysis for ethyl alcohol in defendant’s urine was made and the result thereof furnished to a doctor who testified concerning such analysis. Admission of this evidence was objected to by defendant on the ground that it compelled him to give evidence against himself. The appellate court stated that the evidence showed that the defendant had acted freely and voluntarily and not under compulsion and that therefore the evidence was admissible. Although not material to the decision, the court cited and quoted with approval from cases in other jurisdictions expressing the view that the privilege against self-crimination should be confined to testimonial utterances. Distinction is made by some courts between the admissibility of evidence of the result of a prisoner’s affirmative act or acts under compulsion and the result accomplished without his active participation but against his will. This distinction is well illustrated in State v. Griffin, 129 S. C. 200, 124 S. E. 81, 35 A. L. R. 1227. There two questions were involved, to wit: “ * * * (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 *587 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 lie compelled the defendant to put her foot in the track, and that she would not do it in the right way?” The first question was answered in the affirmative. The reason for so holding is thus stated: “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.” Many authorities are cited in support of this doctrine and it seems sound and logical to us. It is in accord with the weight of authority. In answer to the second question presented, the court held that testimony as to the sheriff compelling the defendant “to put her foot in the track, and her conduct in doing so” was inadmissible for the reason that the defendant was required to do an affirmative act. “If the conformity had been perfect, that fact would have appeared from the enforced conduct of the defendant, clearly testimonial compulsion. If otherwise, as appeared, the inference of guilt from the effort to obliterate the track would have been a legitimate basis of comment”. Defendant, in Apodaca v. State, 140 Tex. Crim. Rep. 593, 146 S. W. (2d) 381, was charged with murder committed in the operation of an automobile on a public highway, while under the influence of intoxicat *588 ing liquor. After lie was arrested he was questioned and his answers were reduced to writing. He was required to walk, make sudden turns, hold out his hand, and make an effort to place a finger on his nose. He also was required to furnish a specimen of urine in order that it might be analyzed for the purpose of determining whether alcohol was present. All of these acts were required under compulsion. Over the defendant’s objection that he had been required to give evidence against himself, in violation of the constitutional provision against self-crimination, one of the officers was permitted to describe the tests and to express his opinion, based upon the tests made, that the defendant was intoxicated. The appellate court held that error was committed in admitting this evidence, saying: “Demonstration by an act ‘which tends to self-incrimination is as obnoxious to the immunity guaranteed by the Constitution as one by words.’ ” No particular act of the defendant is singled out by the court. There is no discussion as to the admissibility of evidence of the urinalysis. The other evidence objected to was inadmissible under the holding in State v. Griffin, supra, concerning the acts done by defendant under compulsion. That question, however, is not here involved for the defendant Cram was not compelled to do anything. Defendant Cram places much reliance upon State v. Height, 117 Iowa 650, 91 N. W. 935, 59 L. R. A. 437, 94 Am. St. Rep. 323, decided in 1902. Defendant therein was charged with rape. While in jail he was examined by physicians, not called by him, to determine whether he was suffering from a venereal disease, which, it was alleged, prosecutrix contracted from him. The examination was made under the direction of the pros *589 ecuting attorney and was at first resisted by defendant, bnt later he submitted under duress. The appellate court ruled that the investigation was made without authority as against defendant’s objection and that receipt of evidence of such examination was error “on the ground that it was the result of the invasion of defendant’s constitutional right, impliedly guaranteed under the provision of our constitution as to due process of law, not to criminate himself.” It is observed by the court that although there is no provision in the Iowa constitution against self-crimination, there is a clause in that constitution against unlawful search and seizure similar to that found in the fourth amendment to the federal constitution. The court then refers to Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 S. Ct. 524, and quotes extensively from the opinion in that ease to the effect that evidence acquired through unlawful search and seizure is inadmissible. The court concluded that part of the opinion as follows: “ * * * The search was for the mere purpose of securing evidence by an invasion of the private person of the defendant, and we think there is no consideration whatever which will justify it. Without further elaboration or the multiplication of authorities, it is enough to say that the officers acted unlawfully in compelling defendant to submit to this examination, and all evidence with reference to information secured thereby should have been excluded on defendant’s objection.” The ruling in the Height case, in our opinion, has been weakened greatly by later decisions of the court that rendered it. In State v. Tonn, 195 Iowa 94, 102, 191 N. W. 530, the court held that evidence obtained by-illegal seizure was admissible, overruled its previous *590 decisions holding to the contrary, and refused to follow Boyd v. United States. Commenting on the Height case, the court said: “We cited the Boyd case as sustaining the proposition that evidence so obtained could not be used against the defendant upon the trial of the crime. The case really turns, however, upon the proposition that the officers acted unlawfully in compelling the defendant to submit to the examination, which was, in effect, requiring him to furnish evidence against himself.” State v. Weltha, 228 Iowa 519, 292 N. W. 148, involved the admissibility of evidence concerning a blood sample taken from an unconscious person under the following circumstances: The defendant Weltha was indicted for manslaughter, death being caused by the reckless driving of an automobile. He was found in an unconscious condition at the scene of the accident and removed to a hospital in Story county. While being treated by Dr. Lakwa, the coroner of another county by the name of Dr. Lewis “proceeded to draw from defendant’s arm the blood sample which was the subject of much controversy in the ease. ’ ’ At that time no information had been filed against defendant and he was not under arrest. After stating that Dr. Lewis was not an official of Story county, the court said: “ * * * We have here then a situation where a volunteer, without legal warrant and without express or implied assent, intrudes himself into an operating room and takes from an unconscious patient a blood sample to be used to make or sustain possible future criminal prosecution. We cannot bring ourselves to approve such a course; and we find no authority which requires us to do so. We do not overlook the many citations in the briefs, least of all our own decisions. *591 “We are not called on nor are we attempting to review or reconsider the rule of the Tonn and other eases cited. Those decisions deal with, persons under arrest or charged with crime. We are not disposed to broaden the rule announced by them to permit an invasion of the person of a citizen under the circumstances disclosed by this record. * *' * ” (Italics supplied.) State v. Height, supra, is not mentioned. The court, in arriving at its decision, gave much weight to the fact that the defendant at the time the blood sample was taken was not charged with any crime or under arrest. In State v. Benson, 230 Iowa 1168, 300 N. W. 275, the court held that the refusal of a defendant to submit to a blood test might be shown to the jury. In this connection, the court said: “Of course, when one is accused of a crime, he does not have to reply to the accusation. But if he declines to reply, his act of silence may be shown to the jury. We are of the opinion that the situation now before us is analogous. The request for a blood test did no more than inferentially accuse the defendant of intoxication. His refusal to submit- is similar to a refusal to speak.” Missouri has followed the rule enunciated in State v. Height, supra. In State v. Newcomb, 220 Mo. 54, 119 S. W. 405, the defendant was charged with the crime of rape. While in custody he was ordered by the justice of the peace, at the demand of the prosecuting attorney, to submit to a physical examination by a physician who testified, over the objection of the defendant, as to the result of that examination. The appellate court held that this testimony should have been excluded as it was a denial of the defendant’s privilege against self-crimination. State v. Young, 119 *592 Mo. 495, 24 S. W. 1038, was cited as authority for its decision. That case involved the admission of statements made by defendant Young during his examination “before the coroner and jury of inquest.” It had nothing to do with defendant’s physical examination. The Height case is referred to without comment in State v. Newcomb. See also State v. Horton, 247 Mo. 657, 153 S. W. 1051; State v. Matsinger, (Mo.) 180 S. W. 856. In Bethel v. State, 178 Ark. 277, 10 S. W. (2d) 370, defendants were convicted of the crime of rape and appealed. A physician was permitted, over the objection of the defendants, to testify on the day following the crime that, at the request of the sheriff, he had made a physical examination of both defendants and found them afflicted with a venereal disease. The judgment appealed from was reversed. The court, after referring to the provision in the state constitution against compelling a person in a criminal case to be a witness against himself, and quoting from two Missouri cases, stated: “This testimony did not tend to prove the crime charged, but only tended to prejudice, degrade, and humiliate them before the jury. The majority of the court is of the opinion that the court committed reversible error in admitting the testimony of Dr. McCall.” Bednarik v. Bednarik, 18 N. J. Misc. 633, 16 A. (2d) 80, involved the question of whether or not the court could require defendant and her daughter to submit to one or more blood grouping tests to determine the parentage of defendant’s daughter. The application for the blood test, which was made by the plaintiff in' a divorce proceeding, was denied in an opinion by Herr, advisory master, in which he stated that the *593 granting of it would, in Ms judgment, “amount to an unconstitutional invasion of the right of personal privacy of the defendant and of the child.” Wragg v. Griffin, 185 Iowa 243, 170 N. W. 400, 2 A. L. R. 1327, was a proceeding for a writ of habeas corpus. It was held there that the local board of health of the city of Des Moines could not detain, without clear and definite legislative authority therefor, a person suspected of having a venereal disease for the purpose of forcing the exposure of his body to physical examination and extracting blood from his veins in search of evidence of such disease, and that such detention was a deprivation of liberty without due process of law. It is not necessary for us to express any opinion as to the correctness of the conclusions reached in the two cases last above-cited. We need not consider how far a court would go in requiring a man to submit to a blood test. See Holt v. United States, supra. Here the blood has already been extracted; defendant is not being called upon to submit to an examination. The defendant was not deprived of any of his coustitutional rights by the admission of the testimony here in question. He was not compelled to testify against himself. Evidence of the result of the analysis of the blood sample was not his testimony but that of Dr. Beeman, distinct from anything the defendant may have said or done. The blood sample was obtained without the use of any process against him as a witness. He was not required to establish the authenticity, identity or origin of the blood; those facts were proved by other witnesses. If the evidence here under attack is inadmissible, it is difficult to understand under what theory fingerprints procured under compulsion, or evidence con *594 cerning them, is admissible. It is equally difficult to comprehend why the defendant is not denied his constitutional privilege against self-crimination by being required to do the many acts hereinbefore enumerated. In holding that the testimony concerning the blood sample was admissible we are not deciding that an accused can be forced to undergo a physical examination or to submit to a blood test. The question of unlawful search and seizure is not involved in this case. It is not being urged. Moreover, the defendant was under arrest at the time the blood sample was taken. The judgment appealed from is affirmed. Rossman, Lusk, Brand and Hay, J. J., concur.