State v. Wolfe , 64 S.D. 178 ( 1936 )

Judge RUDOLPH in his dissenting opinion, analyzes the case of Petite v. People, 8 Colo. 518, 9 P. 622, and observes that if comment is an invasion of defendant's constitutional rights, no instruction of the court could cure it. This, I think, is an established principle of law. He says that this criticism can also be made of the case of Ruloff v. People, 45 N.Y. 213, and in this I also agree. I think, however, that the Ruloff Case requires further discussion. This case was decided in 1871, only two years after the New York Legislature had passed a statute identical with our statute as it existed prior to 1927, and only seven years following the Maine Act of 1864 (Laws 1864, c. 280) which was the first legislative act conferring competency on persons on trial for crime, so it is probably largely responsible for the holdings of the several courts whose decisions are cited in the majority opinion as authority for the view that comment on defendant's failure to testify, is violative of the Constitution. The situation in this case was that the trial judge had, in his charge to the jury, alluded at least twice to the fact that the defendant was not sworn; but, upon his attention being called to the statute, told the jury that there was no law requiring the prisoner to be sworn and that no inference was to be drawn against him from the fact of his not being sworn. The Court of Appeals, as in the case of Petite v. People, supra, held the error to be cured by the subsequent explanation, which, as Judge RUDOLPH remarks, is not consistent with the idea that defendant's constitutional rights had been invaded. Certainly, if defendant had been deprived of a constitutional right no explanation could have remedied the error.

But let us further examine this pioneer authority for the unconstitutionality of comment. The decision proceeds to recite the manifold disadvantages resulting to the accused should he take the stand in his own defense, the court observing that "The act [Chapter 678 Laws of 1869] may be regarded as of doubtful propriety, and many regard it as unwise, and as subjecting a person on trial to a severe if not cruel test." And that "If, with this statute in force, the fact that he is not sworn can be used against him, * * * then the individual is morally coerced, although not actually compelled to be a witness against himself. The constitution, which protects a party accused of crime from being a witness against himself, will be practically abrogated."

The Ruloff Case is an eloquent diatribe against the beneficence of the legislative grant of testimonial capacity to persons on trial for crime and one is easily persuaded that the members of that court did not approve of the legislative act which rendered the defendant a competent witness, but it certainly cannot be construed as authority for the unconstitutionality of comment on the failure of the accused to testify. On the contrary, this decision specifically holds that the defendant is not actually compelled to be a witness against himself, and, apparently not persuaded that moral coercion can amount to actual compulsion, the court carefully tempers its phraseology by saying that the Constitution would be practically abrogated.

To just what extent this decision has influenced the trend of the decisions cited in the majority opinion is, of course, impossible of ascertainment, except that it has been frequently cited as holding comment to be an invasion of a constitutional right.

The constitutional guaranty is that no person shall be compelled in any criminal case to give evidence against himself; not that he shall not be morally coerced. There is certainly a vast difference between the two as is clearly recognized in the Ruloff Case. If it is moral coercion for a prosecutor to comment on the obvious fact that the accused has not testified, it is certainly the very extreme of moral coercion to confront him with his accusers and tempt him to deny their accusations. All the mechanics of a criminal trial are a form of moral coercion tending to force testimony from the unwilling lips of the defendant. The considerations which may impel or morally coerce a person on trial to testify depend on a multitude of different circumstances, some of which, as for example, the desire to protect other persons involved, or perhaps the promptings of conscience might be classed as moral coercion. After all, we must not overlook the fact that a criminal trial is a proceeding to determine the guilt or innocence of the defendant. If the jury observes his failure to testify as to facts within his apparent knowledge, it is likely to make the same deductions that it would if he failed to deny a charge made against him and in his presence out of court, since it knows of his right to testify if he chooses so to do.

The moral coercion of the defendant, which may impel him to take the witness chair, is the consciousness that the jurors will observe his failure to do so, and, by applying their own human experience and observation, treat it as an evidence of guilt. To assume that the jury will not notice that this central figure in the trial has failed to testify, but will remain in blissful ignorance of the fact until reminded of it by the prosecutor, is an assumption fully as unsound as that of the Legislature in providing by statute that "His (the defendant's) failure to make such request (to testify) shall not create any presumption against him," which is an amazing example of legislative confidence in its power to control human reactions.

Neither legislative command nor judicial doctrine will close the eyes of jurors to the failure of defendant to deny from the witness chair the inculpatory facts adduced from the state's witnesses; nor can the jury fail to draw an inference therefrom unfavorable to defendant. This, the defendant well knows, and, doubting the omnipotence of the Legislature to direct the natural conclusions of men with a statute creating a negation of presumption, he is morally coerced to take the witness chair. The comment of the prosecutor does not create a situation which did not already exist and was not already evident to every juror. Hence the unreasonableness of the theory that the fear of the prosecutor's comment on the obvious fact that defendant has not testified at the trial coerces the defendant into testifying.

The majority opinion states "That this court is committed to the rule that it is a violation of constitutional rights to permit comment on the failure of the accused to testify," and cites in support thereof the cases of State v. Vroman, 45 S.D. 465, 188 N.W. 746; State v. Smith, 56 S.D. 238, 228 N.W. 240, 247; State ex rel. Poach v. Sly 63 S.D. 162, 257 N.W. 113.

The Sly Case is one in which this court was considering the question of whether a person who testified in a John Doe investigation could move to quash an information later filed charging him with a crime. In the opinion, written by Judge Campbell, there is a general discussion of constitutional guaranties against self-incrimination, in which the court, after referring to the system of criminal procedure in force in continental Europe, "Where, as in France, the person suspected or accused of crime can be and is subjected, regardless of his wishes, to the most thorough, searching, and severe judicial examination," closes the subject by using the phrase alluded to in the majority opinion, viz.: "But if such a change in the organic structure and underlying theory of our system of criminal law is to be made, it must be made by the people by constitutional amendment, and, until the Constitutions are changed, it cannot and must not be made by legislative enactment or judicial interpretation." I am in full agreement that to change our criminal trial system to the continental European system would be beyond the power of either the Legislature or the courts, but I am unable to see that any law laid down in State ex rel. Poach v. Sly has any bearing on the question of the constitutionality of comment by the prosecutor on the failure of defendant to testify.

The only contribution which this decision makes to the subject here in controversy is a statement that section 9, article 6 of the South Dakota Constitution is "emphasized" by section 4879. R.C. 1919, but as no amount of emphasis by a Legislature can have much effect on a constitutional provision, I think we can say that this case has not very far committed this court to the rule stated in the majority opinion.

The case of State v. Smith, supra, was another case where the accused had been taken before a magistrate in a John Doe investigation and had testified; was later arrested and convicted, and on appeal claimed that his constitutional rights had been invaded in the investigation. There was no claim of comment by the prosecutor. The opinion, after a general discussion of the constitutional guaranties, refers to section 4879, R.C. 1919 and says: "This amounts to nothing more nor less than a statutory interpretation and reiteration of the constitutional immunity."

The only one of the three decisions of this court cited in the majority opinion which deals with comment on failure to testify is the case of State v. Vroman, supra, in which the court considers the comment of the prosecutor in reference to the refusal of an accused on trial for perjury and who had testified in his own behalf, to make some specimen signatures. Here the court held the comment to be an invasion of defendant's statutory rights, which, in view of the provisions of section 4879, R.C. 1919, then in force, was clearly a correct conclusion. The court, however, again makes the usual, and, I think, not only entirely gratuitous, but wholly incorrect observation, that section 4879, supra, is merely a legislative interpretation of section 9, article 6 of the Constitution.

I have here attempted to analyze these three opinions of this court, not because I believe they have any bearing on the question now before us, but because they have been accorded such importance by the majority of this court, as committing us to the rule, that it is a violation of defendant's constitutional rights to permit comment on his failure to testify.

All three of these cases were decided while section 4879, negating presumption from failure to testify, was in force, so that, independently of the Constitution, no comment would be proper. Stripped down to their essentials, all these decisions hold as regards the Constitution is that section 9 of article 6 is emphasized by the statute (State ex rel. Poach v. Sly, supra) and that the Legislature by the passage of section 4879 has placed a legislative interpretation on the constitutional provision (State v. Smith, supra; State v. Vroman, supra).

The position then to which this court is committed, is not that comment is an invasion of the constitutional right, but only that we are bound by an interpretation placed on the Constitution by the state Legislature to the effect that the constitutional provision is synonymous with section 4879.

The Legislature has not undertaken to interpret the Constitution, and, if it has, has neither the authority nor the capacity to do so. Chapter 16, Laws of 1879, Territory of Dakota, which is the parent statute of section 4879, R.C. 1919, is an exact copy of statutes existing in older states at the time of its passage. The original common-law incompetency of the defendant had in point of time been first removed by the Maine Legislature in 1864 by a statute providing, in substance, that the defendant might, at his own request, but not otherwise, be a competent witness. The Maine act did not have the provision relating to presumption. This privilege seems to have been generally considered as being a boon of doubtful value to the defendant, so when, in 1869, the New York Legislature was considering the passage of a statute conferring competency on the defendant, they added the clause "and his failure to make such request shall not create any presumption against him," thereby evoking the approval of the Court of Appeals of that state and prompting it to say in the case of Ruloff v. People, supra: "The Legislature forsaw some of the evils and dangers that might result from the passage of this act, and did what could be done to prevent them by enacting that the neglect or refusal of the accused to testify should not create a presumption against him." And although the Ruloff Case was decided only two years subsequent to the passage of the statute, the Court of Appeals seemed to view the act of the New York Legislature as a piece of constructive legislation rather than as a legislative interpretation of the Constitution.

The matter of the proper construction and interpretation of our Constitution is for this court, not for the Legislature. Section 4879 was repealed by chapter 93, Laws of 1927 in so far as the presumption from failure to testify is concerned, so even if the Legislature did interpret the Constitution back in 1879, it has now seen fit to forswear such interpretation in favor of a new one. We may not, therefore, longer evade the necessity of substituting judicial for legislative interpretation. I fully concur in the dissenting opinion of Judge RUDOLPH, and respectfully dissent from the result reached in the majority opinion.