State v. Clark , 156 Wash. 543 ( 1930 )

Defendant was convicted of the crime of forcible rape and has appealed from the judgment and sentence.

About four o'clock of the afternoon of December 6, 1928, the prosecuting witness, age fourteen years, departed from school at Roy, Washington, for her home. While following a trail through a wooded section, a man jumped out behind the girl from a blind alongside the path, bound a white cloth over her face, picked her up from the ground where she had fallen, carried her some distance further into the woods and forcibly had sexual intercourse with her. Upon the consummation of the crime, the cloth was removed from the girl's face and she was permitted to arise. She then for the first time saw the man who had assaulted her. He had on dark overalls, a dark coat and cap, brown high-topped shoes, with the overalls rolled up a short distance. He also had a mask of white cloth over his face. At the trial the girl identified the cloth which the man had tied about her face from the peculiar odor with which it was charged and which sickened her and made it difficult for her to breathe while it was over her face. The cloth identified by the girl is one that was taken from the suitcase of the appellant at the time of his arrest. Upon her release, the girl, when she got back to the trail, turned and saw the man standing. She ran to her home and there related the occurrence to her mother.

That evening the appellant was arrested in his room in a hotel at Roy, where was found a dirty cloth wrapped up in a clean towel, and both tucked away in his suitcase. Upon the appellant was found a three-bladed knife, one blade of which was covered with pitch. Between four and five p.m., the afternoon of the crime, the appellant brought three cedar boughs into the kitchen of the hotel where he lived. The appellant admitted that the three boughs which were introduced in evidence, were cut by him with the knife taken from his person.

At the point where the man jumped from the woods on to the girl while she was walking along the trail, was a blind consisting of fir saplings laid against a fir tree, the fir tree standing alongside the trail. The fir saplings had been cut with a knife and the cut ends were sticking in the ground, and the ground directly under the lower branches of the fir tree and behind the fir saplings had been freshly disturbed. It appears from the evidence clearly that the fir saplings which were cut for the construction of the blind and the three cedar boughs appellant admitted cutting with his knife were all cut by the same blade. It was the theory of the state that the appellant prepared the blind a few days prior to the assault and there laid in wait to attack the girl.

About the same hour of the afternoon (three forty-five p.m.), three days prior to the commission of the crime, the appellant was seen in the woods near where the assault took place and was at that time unable to give a satisfactory explanation to one who asked him what he was doing. One witness saw the prosecuting witness walk down the trail leading into the woods near the scene of the crime about five minutes after four December 6, 1928, and about four-thirty p.m. a man came out of the woods and crossed a field in a northerly direction and in the direction of the cedar tree from which three branches were cut with the knife taken from the appellant. The man had his collar pulled up in a manner to conceal his head. Another witness saw the appellant, about three-thirty p.m., about one-half to three-quarters of an hour prior to the commission of the crime, on the railroad tracks east of Roy. At that time the appellant had on high-topped shoes with his overalls rolled up a short distance.

During the assault, the man talked to the girl. She also heard the appellant talk the night of December 6, shortly after he was arrested. She testified that the voice of the appellant was the same as the voice of the man who attacked her. She saw the man in the woods stand up, and she testified at the trial that the appellant was the same height as the man who attacked her and was of the same general size. The fir saplings forming the blind and the three cedar boughs appellant admitted he cut were introduced in evidence, and the photographs of the cut surface of each of the saplings and each of the cedar boughs were submitted to the jury as evidence that the same knife, that of appellant, cut all of them. Appellant was found guilty as charged and sentenced to serve a penitentiary term of from twenty to thirty years.

Counsel for appellant complains that he was not permitted to inspect a sworn statement obtained by the prosecutor from the appellant between the time of appellant's arrest and the time the information was filed. He also assigns as error the refusal to permit him to inspect certain articles taken from the appellant.

[1] The state did not make any use of the written statement on the trial of the appellant. If the appellant could disclose information to the prosecuting attorney, he certainly could have given the same information to his counsel. If the state had introduced the statement to impeach the testimony of the appellant, a different question might have been presented. However, the statement was not used, nor did the appellant take the stand in his own behalf. While the jury were instructed that no inference of guilt should be drawn from failure of the appellant to take the stand, it does not follow that we can infer, as suggested by argument of counsel, that failure of appellant to testify was due to fear of impeachment by the written statement he had made to the prosecuting attorney. Counsel may know that appellant did not take the stand because of that, but we do not know it, nor may we so assume.

The only articles taken from the appellant that were introduced in evidence were the knife and the cloth. Counsel for appellant was permitted, prior to the trial, to inspect the knife. He was also permitted to examine the cloth before it was introduced in evidence. No request was made at any time that he be permitted to have the articles examined by experts. The trial court did not abuse its discretion in this matter.

"No request was made that the garments be placed at the disposal of the appellant so that he could have them microscopically examined by his own experts, and, of course, there was no denial of such a request." State v. Allen,128 Wn. 217, 222 P. 502.

[2] Counsel for appellant next contends that, in ordering the appellant to stand up and walk over in front of the chair upon which the prosecuting witness was sitting, to enable her to identify the appellant, the court compelled the appellant to be a witness against himself.

The contention is without merit. The state has a right to have the defendant present. The defendant in a criminal case is necessarily present in court — he is there because under arrest; because of the charge against him he is compelled by law to be present. It is the defendant's right to be present; he can not be prosecuted otherwise. When he comes into court, he brings with him the features with which nature endowed him. The jury could see those features. The mere standing up was not the giving of evidence — the evidence was there anyway, whether the defendant was reclining or standing. The defendant does not testify — the physical facts speak for themselves. The defendant is required to be present in such a position that the jury can see him at all times during the trial.

The rule, supported by the authorities, is that a defendant may be compelled to stand for identification, and that he is not thereby compelled to give evidence against himself.

"Directing defendant to stand up for identification is not compelling him to be a witness against himself, and it is always proper to ask a witness to look about the court and to point out the person who committed the crime, or to point out accused and ask the witness if he is the person who committed the crime." 16 C.J., p. 568, § 1100.

"By exhibition of the person, or the like. The scope of the privilege, in history and in principle, includes only the process of testifying, by word of mouth or in writing, i.e., the process of disclosing by utterance. It has no application to such physical, evidential circumstances as may exist on the witness' body or about his person. The privilege does not rest on the extreme notion that a guilty person is entitled to conceal as much as he can of the evidence of his crime; but on the notion that he should not be made to confess it out of his own mouth. Nevertheless, in the last generation a false and sentimental tenderness for the guilty accused has created a tendency in some quarters to extend the privilege in ways unimagined by those who laid its foundations; and the question is now often raised whether the privilege does not protect an accused person from the inspection or search or exhibition of his person. In the great majority of jurisdictions this extension has received no sanction; for example, the accused may be compelled to stand up in court for identification; . . ." Greenleaf, Evidence (16th ed.), vol. 1, § 469-e.

[3] The fir saplings that were used in the construction of the blind from which the man sprang on the prosecuting witness, the fir stumps from which the saplings were cut, a yew tree branch and three cedar boughs, together with photomicrographs of the surface of the cuts on the boughs and branches, were admitted in evidence. Counsel for appellant contends that this constitutes reversible error.

At the time of his arrest, a three-bladed knife was found upon the person of the appellant. One blade of that knife was covered with pitch. The appellant admitted that he had that day cut three cedar boughs with the pitchy blade. The blind behind which the man hid who assaulted the prosecuting witness consisted of fir saplings laid against a fir tree. The fir saplings had been cut with a knife and the cut ends were sticking in the ground. A yew tree branch was found a short distance from the blind. The photomicrographs of the cuts on the cedar boughs, which the appellant admits cutting with the knife taken from him, and of the surface of the cuts on the yew tree branch and fir saplings conclusively establish, we are convinced, as doubtless the jury were, that the cuts were made with the same blade. The cedar boughs which the appellant admits cutting were cut from a tree twenty-four hundred feet from the place where the crime was committed, and were cut almost immediately following the commission of the crime. The cedar limbs that appellant admitted cutting, the stubs from the cedar tree from which the limbs were cut and the knife with which appellant confessed the branches were cut were admissible upon the theory that they established the fact that appellant was in the vicinity (twenty-four hundred feet distant) of the scene of the crime at approximately the time the crime was committed.

That the knife cuts on the fir saplings found in the blind and the knife cuts on the branch from the yew tree were made by the same blade the expert witness testified was demonstrable. The testimony of that expert, coupled with the photomicrographs of the fir and cedar bough surface cuts, should be admitted. A question of fact was presented for determination by the jury.

Courts are no longer skeptical that, by the aid of scientific appliances, the identity of a person may be established by finger prints. There is no difference in principle in the utilization of the photomicrograph to determine that the same tool that made one impression is the same instrument that made another impression. The edge on one blade differs as greatly from the edge on another blade as the lines on one human hand differ from the lines on another. This is a progressive age. The scientific means afforded should be used to apprehend the criminal.

"Progressive and scientific processes and appliances which belong to the various human endeavors belong equally to the machinery of the law." State v. Kuhl, 42 Nev. 185,175 P. 190.

An apt authority is People v. Jennings, 252 Ill. 534,96 N.E. 1077, wherein the court said, referring to the admissibility of finger-print evidence:

"We are disposed to hold from the evidence of the four witnesses who testified, and from the writings we have referred to on this subject, that there is a scientific basis for the system of finger print identification, and that the courts are justified in admitting this class of evidence; that this method of identification is in such general and common use that the courts cannot refuse to take judicial cognizance of it. Such evidence may or may not be of independent strength, but it is admissible, the same as other proof, as tending to make out a case. If inferences as to the identity of persons based on the voice, the appearance, or age are admissible, why does not this record justify the admission of this finger print testimony under common law rules of evidence. The general rule is that whatever tends to prove any material fact is relevant and competent."

The facts in State v. Fasick, 149 Wn. 92, 270 P. 123,274 P. 712, distinguish that case from the case at bar. In theFasick case there was only one mark on the two pictures admitted in evidence which compared one with the other. In the case at bar there are more than fifty marks appearing on the pictures of the cut surfaces of the fir boughs which can be identified as appearing on the cut surfaces of the cedar boughs. In the Fasick case it does not appear that the knife was the property of the appellant. In the case at bar the ownership of the knife was admitted as was the cutting of the cedar boughs, the surface cuts of which were used for comparison with the surface cuts of the fir saplings. The evidence tended to prove that the knife blade that cut the cedar boughs cut the fir saplings. It was very material who cut the fir saplings and constructed the blind alongside the trail. The one who cut the fir saplings and made the blind doubtless committed the criminal assault.

Finding no error justifying reversal, the judgment is affirmed.

MITCHELL, C.J., PARKER, BEALS, and TOLMAN, JJ., concur.