The Central Law Journal

number of queries and the care and learning frequently expended upon the answers, are the best evidence of the appreciation bestowed by the public upon this feature of the JOURNAL.

The continued success and popularity of any periodical publication after a sufficient time has elapsed for the reader to become thoroughly acquainted with it and accustomed to its scope and methods, is the best possible evidence of its real value to the public to which it is addressed. Consequently it is with a feeling of self-congratulation that the CENTRAL LAW JOURNAL enters upon its fifteenth volume with the most flattering evidences of the appreciation of its subscribers and leaders. The reception, which it has met with from the profession, from the period of its first issue is an assurance of the existence of a genuine demand on the part of the profession, for a paper devoted to the practical and utilitarian wants of the practitioner rather than to dilettante and antiquarian tastes. Our success in meeting this demand enables us, without boasting, to congratulate ourselves upon the result. We thank our subscribers for their support, and shall continue to endeavor to deserve it.

As from time to time in the past we have introduced new features and improvements in the JOURNAL, So, from time to time we shall continue to do so in the future; but of one thing our readers may rest assured, that the essential character of the JOURNAL as a practical helper to the actual working lawyer will not be changed. In this volume the reader will note that the "Weekly Digest of Recent Cases" will be preceded by a table of States, with a view to facilitate the search of one who is looking for matter from a particular State merely. The column of "Queries and Answers' has become already an established institution, and as a feature of legal-journalism is unique in the perfection to which it has been developed in our pages. A very short acquaintance with it is necessary to convince any one, who has experienced the imperfections of digests, indexes and text-books, of its value as a means of utilizing, in the search for authority, the experience and memories of many widely scattered individuals. The Vol. 15-No. 1.

The distinction between a conveyance which is simply the exercise of an insolvent debtor's right to prefer one creditor to another and one which is fraudulent in its character, is sharply drawn in the case of Blennerhasse tt v. Sherman, recently decided in the United States Supreme Court. The contest was upon the validity of a mortgage executed by an insolvent debtor to secure a creditor who knew that he was insolvent, and who withheld it from record in order to give his debtor a fictitious credit. Says Mr. Justice Woods, who delivered the opinion of the court: "It is not to be disputed that, except as forbidden by the bankrupt law, a debtor has the right to prefer one creditor over another, and that the vigilant creditor is entitled to the advantage secured by his watchfulness and attention to his own interests. Neither can it be denied that the mere failure to record a mortgage is not a ground for setting it aside for the benefit of subsequent creditors who have acquired no specific lien on the property described in the mortgage. But where a mortgagee, knowing that his mortgagor is insolvent, for the purpose of giving him a fictitious credit actively conceals the mortgage which covers the mortgagor's entire estate and withholds it from the record, and while so concealing it represents the mortgagor as having a large estate and unlimited credit, and by these means others are induced to give credit to the mortgagor, who fails and is unable to pay the debts thus contracted, the mortgage will be declared fraudulent and void at common law, whether the motive of the mortgagee be gain to himself or advantage to his mortgagor."

PROFERT OF THE PERSON.

In the early history of English law the rule was that accused persons were compelled to answer to any criminal charge brought against them. The practice was akin to denying to a prisoner the right to be defended at his trial, or to exculpate himself by the testimony of witnesses—a practice derived from the civil law. But all this gradually was changed, and nemo tenebatur prodere seipsum became a maxim of the law. This maxim has been incorporated into the fundamental law, and established in the Constitution of the United States, as well as in those of the several States, when it has been expressly provided that no accused person shall be compelled to give evidence against himself in any criminal case.

Can the courts order a person accused of crime to make profert of his person-to submit to a compulsory examination of his person or would this be, in effect, compelling him to give evidence against himself, and therefore a violation of his constitutional rights? This is an interesting question, which has been somewhat considered by the courts, but still seems unsettled and debatable.

In 1858, the Supreme Court of North Carolina, in what is known as Jacob's Case,2 held that a defendant could not be compelled to exhibit himself to the inspection of a jury for the purpose of enabling them to determine his status as a free negro. And in 1872, in Johnson's Case, the above ruling was approved by the same court. later

Two years the question was again before this court in Garrett's Case. In that case it appeared that the defendant had stated to persons present on the night of the homicide that the deceased came to her death by her clothes accidentally catching fire while the deceased was asleep, and that she, the defendant, in attempting to put out the flames burnt one of her hands. At the coroner's inquest, the defendant was compelled to unwrap the hand which she had stated was burnt, and exhibit it to a physician in order that he might see

1 See 4 Blackstone, 355, 359.

25 Jones, 259.

3 67 N. C., 58.

4 71 N. C., 58.

whether there was any indication of burn upon it. And it was held that the actual condi tion of her hand, although she was ordered by the coroner to exhibit it to the doctor, was inadmissible evidence. Jacob's Case was distinguished as follows: "The distinction between that and our case is, that in Jacob's Case, the prisoner himself, on trial, was compelled to exhibit himself to the jury, that they might see that he was within the prohibited degree of color, thus he was forced to become a witness against himself. This was held to be error. In our case, not the prisoner, but the witnesses, were called to prove what they saw upon inspecting the prisoner's hand, although that inspection was obtained by intimidation." In Nevada it has been held that the court could lawfully compel a criminal defendant, against his objection, to exhibit his bare arm, for the purpose of determining whether it had on it certain tatoo marks. The question of identity was raised, and a witness had testified that he knew the defendant, and knew that he had tatoo marks, which he described, on his right fore-aim. The case is among the best considered, perhaps is the best considered, of those sustaining a similar view of this subject. It is worth while to quote from it as follows: "The object of every criminal trial is to ascertain the truth. The Constitution prohibits the State from compelling a defendant to be a witness against himself, because it was believed that he might, by the flattery of hope, or suspicion of fear, be induced to tell a falsehood. of the many reasons urged against the rack, or torture, or against the rule compelling a man to be a witness against himself, can be urged against the act of compelling a defendant, upon a criminal trial, to bare his arm in the presence of the jury so as to enable them to discover whether or not a certain mark could be seen imprinted thereon. Such an examination could not, in the very nature of things, lead to a falsehood. In fact, its only object is to discover the truth; and it would be a sad commentary upon the wisdom of the framers of our Constitution to say that by the adoption of such a clause they have effectually closed the door of investigation tending to establish the truth. Confessions of persons accused of crime, whenever obtained by the influence of hope or fear, are excluded, because in considering the motive

None

which actuate the mind of man, they might be induced to make a false statement. Yet, notwithstanding the universality of this rule of law, whenever the confession, however improperly or illegally obtained, has led to the discovery of any given fact, that fact is always admitted in evidence, because the reasons which would have excluded the confession no longer exist. This is the governing and controlling principle of the law. The Constitution means just what a fair and reasonable interpretation of its language imports. No person shall be compelled to be a witness, that is, to testify, against himself. To use the common phrase, it 'closes the mouth' of the prisoner. A defendant in a criminal case can not be compelled to give evidence under oath or affirmation, or make any statement for the purpose of proving or disproving any question at issue before any tribunal, court, judge or magistrate. This is the shield under which he is protected by the strong arm of the law, and this protection purpose of evading

was given, not for the the truth, but, as before stated, for the reason that in the sound judgment of the men who framed the Constitution, it was thought that owing to the weakness of human nature and the various motives that actuate mankind, a defendant accused of crime might be tempted to give testimony against himself that was not true." 5

This is certainly a strong presentation of this side of the question, and we confess that we do not see how the application of the principle for which the court contends in any way infringes on any right which is essential to the protection of innocent persons unjustly accused. Courts and legislatures have gone quite far enough in the line of making it next to impossible to convict in criminal cases.

In a case decided in the Court of Appeals of Texas in 1879, this question was presented, although in a different form, but a similar conclusion was reached to that announced above. The prisoner was on trial for murder, and the prosecution proved that foot-prints were found on the premises where the murder had been committed, and was allowed to prove over the objection of the defense, that the examining magistrate compelled the de

State v. Ah Chuey, 14 Nev. 79; s. c., 1 Crim. Law Mag., 634.

fendant to make his foot-prints in an ashheap, and that the foot-prints so made corresponded with those found on the premises where the homicide was committed. Council argued that if the prisoner could be compelled to make an impression with his foot in order to see whether it was similar to that 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. And this it is said he may now be compelled to do by statute in England.6 But the court declared that this was no violation of the constitutional privilege that one accused of crime shall not be compelled to give evidence against himself.7

And so in North Carolina it was held in 1876, that an officer who had made the arrest and compelled the prisoner to put his foot in a track found near where the larceny was committed, could testify to the result of the comparison thus made. But, on the same facts, a different conclusion was reached in Georgia in 1879, no reference being made to cases elsewhere decided; and in Tennessee in 1876, where a pan of soft mud was brought into the court room on the trial and the prisoner was asked, in the presence of the jury, to put his foot into it, which he declined to do. The case was reversed for the reason that the prisoner was asked in the presence of the jury to make evidence against himself, and that his refusal improperly influenced the jury, 10

In New York a similar view was taken of this question. The subject was there presented in a case which involved the question whether the prisoner had been delivered of a child. The coroner directed two physicians to go to the jail where the woman was imprisoned, and examine her breasts and private parts, for the purpose of determining whether she had recently been delivered of a child. She denied having been pregnant, and objected to being examined by the phy

6 See 22 Alb. L. J., 145.

7 Walker v. State, 7 Tex. Ct. App., 245, 265.

8 State v. Graham, 74 N. C. 646; s. C., 21 Am. Rep. 493.

9 Day v. State, 63 Ga. 667.

10 Stokes v. State, 5 Baxt. 519; s. C., 30 Am. R. 72.

sicians. But on being told that if she did not voluntarily submit to the examination force would be used and she would be compelled to submit, she yielded, and the physicians examined her private parts with a speculum, and also made an examination of her breasts. The court, however, refused to allow them to testify to the opinion which they formed from the examination in question, and declared that such an examination was in violation of the spirit and meaning of the constitutional provision that no person should be compelled in any criminal case to be a witness against himself. "They might as well have sworn the prisoner 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." 11

And a similar view of this question has been taken in a case lately decided in the Supreme Court of Georgia. In that case, the question was whether the prisoner could be compelled by order and command of the court to make profert of his person so that a witness could be enabled to testify, from personal inspection, as to the character and extent of the amputation of the prisoner's right leg. The prisoner was on trial for murder, and a material and important part of the testimony against him was the character of the track and signs made the night of the murder by the one who, in the dark, approached the house where the deceased was, and fired the fatal shot. These tracks indicated that the murderer had but one leg, and the character of the other print upon the ground depended materially upon the character of the amputation of the other limb. And it was for the purpose of establishing the correspondence between the amputated limb and the prints on the ground, that the prisoner was ordered to make profert of his limb to a witness. It was held that the evidence of the witness based on such profert could not be re

ceived, 12

It appears, therefore, that there is a decided conflict in the cases on the question.

11 People v. McCoy, 45 How. Pr. 216.

12 Blackwell v. State, 3 Crim. Law Mag. 394.

The courts of North Carolina, Nevada and Texas have recognized the right of the court to compel a prisoner to make profert of his person, while this right has been denied in New York, Georgia and Tennessee. But if the court can not admit the testimony of physicians who have made a compulsory examination of the person of a prisoner, is there any right to admit the testimony of police officers who have made a compulsory search of his person, as to counterfeit money or any other indicia of crime which they may have found concealed on his person.. This is every day's practice, and yet it is difficult to see wherein such testimony differs from that of medical experts who have examined his person. It would seem that if such testimony is in the one case compelling the prisoner to give evidence against himself, it is equally so in the other. But it is the opinion of the writer that in neither case is such testimony to be considered as a violation of any constitutional right which the prisoner possesses. Whether the court can compel a person to submit to an examination by physicians in a civil action, is a vastly different question. And it has been held that the court may order such a compulsory examination of the person of the plaintiff, in an action for damages for injuries done to the person. The Supreme Court of Iowa has lately held that in such cases the court may, on the application of the defendant, order the plaintiff to submit his person to an examination by physicians and surgeons for the purpose of ascertaining the character and extent of the injuries alleged. The court declared in this case that the refusal of the plaintiff to submit to an examination so ordered, would render the party liable to punishment for contempt of court, and that if refusal was continued so long as to effectively obstruct the progress of the case, all allegations as to personal injuries might be stricken from the pleadings. "Under the explicit directions of the court, the physicians should have been restrained from imperilling in any degree the life or health of the plaintiff. The use of anaesthetics, opiates or drugs of any kind, should have been forbidden, if, indeed, it had been proposed, and it should have prescribed that he should be subjected to no tests painful in their character." 13

18 Schroeder v. Chicago, etc. R. Co., 47 Towa, 375

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The Central Law Journal, Том 15