able procedure, and can claim a jury trial in the appellate court as of right, it cannot be said that he is deprived of his constitutional right in this regard.31 But this doctrine has been repudiated and denied, so far as concerns the courts of the United States.32

Where a prisoner pleads guilty to an indictment for murder, the court, if the laws of the state permit, may proceed to inquire on evidence, without the intervention of a jury, in what degree of murder the accused is guilty, and may find him guilty of murder in the first degree, and sentence him to death, without' violating the constitutional requirement of due process of law.38

PRIVILEGE AGAINST SELF-CRIMINATING EVIDENCE.

250. The constitutions, national and state, provide that no person shall be compelled, in any criminal case, to be a witness against himself, or to furnish evidence against himself.

34

This guaranty does not create any new right, but merely re-affirms a common-law privilege. It is directed against the extraction of confessions by torture or otherwise, and against the inquisitorial method of trial. The seizure or compulsory production of a man's private books or papers, to be used in evidence against him, is equivalent to compelling him to be a witness against himself, and,. in a prosecution for a crime, penalty, or forfeiture, is equally within the constitutional prohibition.35

This privilege, however, is confined to such cases or proceedings

81 Brown v. Epps, 91 Va. 726, 21 S. E. 119; Jones v. Robbins, 8 Gray (Mass.) 329; City of Emporia v. Volmer, 12 Kan. 622; Wong v. Astoria, 13 Or. 538, 11 Pac. 295.

32 Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301.

33 Hallinger v. Davis, 146 U. S. 314, 13 Sup. Ct. 105. 84 2 Story, Const. § 1788.

35 Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524; State v. Davis, 108 Mo. 666, 18 S. W. 894. But where defendant, resisting a lawful arrest, is seized and searched for weapons, and a pistol taken from him, and he is afterwards indicted and tried for carrying concealed weapons, evidence of the finding of the pistol upon his person is properly admitted, and violates none of his constitutional rights. Chastang v. State, 83 Ala. 29, 3 South, 304.

87

as are criminal in form or criminal in their nature and consequences. It does not extend to cases involving questions of property only.3* But it applies to proceedings before a grand jury, as well as before the traverse jury; the defendant cannot be compelled to testify before the grand jury. And it applies to all proceedings which, though civil in form, are really criminal in their nature; such, for example, as an action under the alien contract labor law to recover the statutory penalty. And in Massachusetts it is held that the privilege applies to investigations ordered or conducted by the leg islature, or either of its branches, and such investigations are regu lated, in this respect, by the same rules as are judicial inquiries.39

38

It is not error to require and compel the prisoner to stand up for the purpose of being identified by a witness on the stand; and it is proper to ask a witness to look around the court room, and point out the person who committed the offense. This does not involve compelling the accused to furnish evidence against himself.40 But the constitutional provision will prevent the court from compelling the prisoner to submit to an examination of his person, or from compelling him to exhibit to the jury marks, scars, deformities, or other physical peculiarities, or to try on articles of clothing or footwear, or to insert his feet into footprints or casts of the same, or from compelling a female prisoner to undergo a surgical examination to determine whether she has borne a child, and other such tests, when the object thereof is to acquire evidence, as to identity or otherwise, which may aid in the conviction of the prisoner. 41

The constitutional privilege of refusing to give self-criminating testimony was not intended to shield the witness from the personal

36 Devoll v. Brownell, 5 Pick. (Mass.) 448; Keith v. Woombell, 8 Pick. (Mass.) 217.

37 Boone v. People, 148 Ill. 440, 36 N. E. 99.

38 Lees v. U. S., 150 U. S. 476, 14 Sup. Ct. 163.

39 Emery's Case, 107 Mass. 172.

40 People v. Gardner, 144 N. Y. 119, 38 N. E. 1003; State v. Johnson, 67 N. C. 55.

41 People v. McCoy, 45 How. Prac. (N. Y.) 216; State v. Jacobs, 5 Jones (N. C.) 259; Blackwell v. State, 67 Ga. 76; People v. Mead, 50 Mich. 228, 15 N. W. 95; Stokes v. State, 5 Baxt. (Tenn.) 619; Union Pac. Ry. Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000. But this rule is not universally admitted. See State v. Ah Chuey, 14 Nev. 79; State v. Johnson, 67 N. C. 55.

disgrace or opprobrium attaching to the exposure of his crime, but only from actual prosecution and punishment. Hence if the crime in which he was implicated was such that a prosecution against him is barred by the statute of limitations, or if he has already received a pardon for it, he may be compelled to answer. And a witness cannot avoid answering any question by the mere statement that the answer would tend to incriminate him, without regard to whether the statement is reasonable or not. On the contrary, it is for the judge before whom the question arises to decide whether an answer thereto may reasonably have a tendency to criminate the witness, or to furnish proof of an element or link in the chain of evidence nec essary to convict him of a crime. But where, from the evidence and the nature of the question, the court can definitely determine that the question, if answered in a particular way, will form a link in the chain of evidence to establish the commission of a crime by the witness, the court cannot inquire whether the witness claimed his priv ilege in good faith or otherwise. It is only where the criminating effect of the question is doubtful that the motive of the witness may be considered, for in such case his bad faith would tend to show that his answer would not subject him to any danger.**

44

In the great case of Counselman v. Hitchcock, it was held that this provision in the federal constitution was not confined to a criminal case against the party himself, but that its object was to insure that one should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he had committed a crime. It was also held that Rev. St. U. S. § 860, which provides that no evidence given by a witness shall be in any manner used against him in any court of the United States in any criminal proceedings, did not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and was not a full substitute for that prohibition; and that it afforded "no protection against that use of compelled testimony, which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party." But a later act

42 Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644; Childs v. Merrill, 66 Vt. 302, 29 Atl. 532.

43 Ex parte Irvine, 74 Fed. 954.

44 142 U. S. 547, 12 Sup. Ct. 195.

of congress provides that no person shall be excused from giving evidence or testifying before the interstate commerce commission on the ground that the evidence or testimony would criminate him, but that no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of anything concerning which he may testify or produce evidence before said commission. And it is held that this act completely shields the witness against any criminal prosecution which might be aided, directly or indirectly, by his testimony, and in effect operates as a pardon for the offense to which it relates, and therefore the act is not in conflict with the provisions of the constitution.45

In many of the states, it is the privilege of the prisoner to testify in his own behalf if he chooses to do so, and, if he does, he may be cross-examined like any other witness. But, if he prefers not to take the stand, it would not be right that he should be exposed to any prejudice in consequence of his omission to do so, for in that case he would not receive the full benefit of his constitutional privilege. Consequently, in those states, it is usually forbidden to the court and counsel to make any comment on the prisoner's omission to testify, or to draw any inferences therefrom with a view to influencing the jury.

CONFRONTING WITH WITNESSES.

251. It is a constitutional right of a person on trial for a criminal offense to be confronted with the witnesses against him, or to "meet the witnesses face to face."

This constitutional guaranty was intended as a safeguard against secret and inquisitorial methods of trial, and to secure to the defendant the privilege of sifting and trying the evidence adduced against him, by cross-examination.

The right to be confronted with the witnesses can be invoked only in criminal cases properly so called. It is not claimable as a matter of constitutional right in an action to enforce a forfeiture or penalty under the revenue laws, nor in proceedings for contempt because of the violation of an injunction. But in all criminal prosecutions,

46

47

45 Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644.

48 U. S. v. Zucker, 161 U. S. 475, 16 Sup. Ct. 641.

47 State v. Mitchell, 3 S. D. 223, 52 N. W. 1052. BL.CONST.L.-37

of whatever sort or degree, the accused has the right to be confronted with the witnesses against him. Thus, on the trial of an impeachment, a law requiring the taking of testimony by examiners, not in the presence of the court, cannot be put into effect without violating the rights of the accused.48

The admission of dying declarations as evidence in a murder trial is not repugnant to this constitutional provision. The reason is that the "witness against him" in this case is the person who narrates the declaration made by the decedent, or who produces and identifies the same, if it was reduced to writing." And depositions in a criminal case, taken de bene esse, under a stipulation by counsel that they shall be read on the trial with the same force and effect as if the witnesses had testified, are not open to objection on this ground.50 On the same principle, the reading in evidence, on a trial for a criminal offense, of a deposition taken, or notes of evidence made, on the preliminary examination before a magistrate, in defendant's presence, when he had an opportunity to cross-examine the witness, who is dead or out of the jurisdiction or not to be found at the time of the trial, is not a denial of defendant's right to be confronted with the witnesses." A statute providing that a continuance in a criminal case for the absence of a material witness may be defeated by an admission that such witness, if present, would testify as alleged in the affidavit for continuance, without admitting the absolute truth of his testimony, is not in conflict with this constitutional guaranty." 52 And if the defendant consents, the court may properly send the jury, unaccompanied by the defendant, to inspect the premises where the crime was committed, as such view

48 State v. Buckley, 54 Ala. 599.

51

49 Mattox v. U. S., 156 U. S. 237, 15 Sup. Ct. 337; State v. Baldwin (Wash.) 45 Pac. 650; Green v. State, 66 Ala. 40; Robbins v. State, 8 Ohio St. 131; Walston v. Com., 16 B. Mon. (Ky.) 15; State v. Dickinson, 41 Wis. 299; People v. Green, 1 Denio (N. Y.) 614.

50 People v. Molins (Gen. Sess.) 10 N. Y. Supp. 130.

51 Mattox v. U. S., 156 U. S. 237, 15 Sup. Ct. 337; People v. Fish, 125 N. Y. 136, 26 N. E. 319; People v. Dowdigan, 67 Mich. 95, 38 N. W. 920; Com. v. Cleary, 148 Pa. St. 26, 23 Atl. 1110; State v. Harman, 27 Mo. 120.

52 Keating v. People, 160 Ill. 480, 43 N. E. 724; Hoyt v. People, 140 Ill. 588, 30 N. E. 315.