Page:The Green Bag (1889–1914), Volume 04.pdf/594

 Practical Tests in Evidence. examination was a disclosure of facts of a criminative character; and such facts are competent evidence against her, although she was induced to submit to the examina tion through the assurance that " it would be the best thing for her that she could do." In State v. Prudhomme, 25 La. Ann. 523, the court said: "The tracks of the mur derer were found near the scene of the mur der; and to enable the witness who saw the tracks to state how they corresponded in size with the feet of the prisoner, he was forced to take his feet from under a chair where he had put them. This the prisoner's counsel calls forcing him to give evidence against himself. A mere statement of the facts shows how utterly untenable the objection is. The witness was required to look at the feet of the prisoner in order to testify to facts which might enable the jury to connect the prisoner with the perpetrator of the crime, and we are unable to perceive how any constitutional right of the prisoner was infringed by com pelling him to place his feet where they could be seen by the witness." It seems to me that the better reason is with the cases holding that the prisoner is not compellable to expose his person, and thus furnish evidence against himself; at all events, that the prisoner is not compellable to expose those parts of his body ordinarily concealed; and certainly that he is not bound to try an experiment which may conduce to his own conviction. The cases holding the contrary liken the exposure to compelling a prisoner to remove a veil or mask. The dis tinction however is, that there the prisoner tries to conceal evidence which is ordinarily visible, and from which the jury have a right to draw a conclusion, and the removal simply restores that evidence. The prisoner has no more right to hide his face, his foot, or his hand than to secrete his whole person. Therefore the Garrett and Prudhomme cases were rightly ruled. The court also liken the ruling to the searching a prisoner and find ing false keys or stolen property upon him. The sufficient answer to that is, that such

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things are not part of his person, but are circumstances by which he has surrounded himself. When these circumstances are dis closed, it is not the man who is compelled to give evidence against himself, but the cir cumstances by which he has environed him self. In Walker v. State, 7 Tex. Ct. App. 245, counsel acutely argued that " if this prisoner can be compelled to make an im pression with his foot in order to see if it is similar to the impression made by the foot of the person who committed the crime, then if he were charged with forgery he could be compelled to take a pen, and write in order to see if his handwriting was similar to that of the party who had committed the forgery." (This he may now by statute be compelled to do in England.) The decision in State v. Ah Chuey, founded on State v. Graham and Stokes v. State, is distinguished on the ground that there " the prisoner was asked in the presence of the jury to make evidence against himself,"— a perfectly futile distinc tion. The worst of this decision is that it permits secondary evidence of incompetent evidence, — evidence of an experiment out of court, which, if tried in court, might not have been conclusive against the prisoner. The concealment of the hand in the Garrett case, and of the foot in the Prudhomme case must be classed with the mask and veil as an instance of an attempt to conceal evi dence ordinarily visible. The jury of course have a right to scrutinize patent facts, such as stature, shape, complexion, hair, features, scars, loss or peculiarity of members, etc. These are public matters, which the public cannot be prevented from viewing, and which the prisoner knows are liable to comment and comparison. Of these, witnesses who observed them may speak, or the jury may look at them in court. So if witnesses have observed the patent characteristics of gait and voice, they may testify to them, or the jury may observe the prisoner's gait as he naturally and voluntarily walks, or his voice as he voluntarily speaks. But will it be con tended that on a question of resemblance of