in a criminal case cannot 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 was given, not for the purpose of evading 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 evidence against himself that was not true." In fairness, an extract from the dissenting opinion of Leonard, J., should be noticed. After quoting from the above opinion, he says: "In my opinion, the court has not stated the only reason why the provision in question was placed in the Constitution. Had that been the only one, there would have been a prohibition against allowing a defendant to testify for himself; because in the latter case there was and is a hundred-fold more danger of falsehood than in the former. Is there not an additional reason why this provision was adopted? Was it not, in part, at least, because of the enlightened spirit of the age, that a man accused of a crime should not be compelled to furnish evidence of any kind which might tend to his conviction? Did it not come, to some extent, from the spirit of justice and humanity which established the first of all legal presumptions-that every person should be considered innocent until proven guilty? Can the person of a criminal be examined against his objection, to furnish evidence of his identity, and tending to his conviction? Harris, Identification, § 605, 606, citing Rex v. Worsenham, 1 Ld. Raym. 705; Reg. v. Mead, 2 Ld. Raym. 927; Roe v. Harvey, 4 Burr. 2489; People v. McCoy, 45 How. Pr. 216; State v. Ah Chuey, 14 Nev. 79; Union Pac. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734; McQuigan v. Delaware, L. & W. R. Co. 14 L. R. A. 466, 129 N. Y. 50; Schroeder v. Chicago, R. I. & P. R. Co. 47 Iowa, 375.

§ 430. Views of Mr. Justice Balcom in the McCoy Case.— "The forcible examination of the prisoner by the physicians for the purpose of obtaining evidence that she had been pregnant, and had been delivered of a child within two or three weeks previous to the time of such examination, was in violation of the

spirit and meaning of the constitution, which declares that 'no person shall 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. . . . Has this court the right to compel the prisoner now to submit to an examination of her private parts and breasts, by physicians, and then have them testify that from such examination they are of the opinion that she is not a virgin, and has had a child? It is not possible that this court has that right; and it is too clear to admit of argument that evidence thus obtained would be inadmissible against the prisoner.'" Balcom, J., in People v. McCoy, 45 How. Pr. 216.

§ 431. The Authorities Examined.-Whether the court has power to order a compulsory examination by experts of the person of a defendant in a criminal proceeding, is an important question which has been somewhat considered by the courts, and upon which a difference of opinion exists. The question turns on the construction to be placed on the constitutional provisions which provide that the accused shall not be compelled to give evidence against himself in any criminal case. Such a provision is found in the Constitution of the United States, and in the constitutions of the several states, with hardly an exception. In State v. Jacobs, 50 N. C. 259, the supreme court of North Carolina, in 1858, 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 this ruling was approved by the same court in State v. Johnson, 67 N. C. 58, in 1872. Rogers, Expert Testimony, § 78.

In a recent case in Iowa a physician made an examination of the face and neck of the defendant while in jail, and testified that he found several scratches. At the trial the defendant did not object to the admission of the testimony, but on appeal he insisted that there was error in admitting it, and claimed that the testimony was in respect to an examination to which he was compelled to submit, and that such examination was in violation of his constitutional rights, and that being so that the admission of the testimony was error, even though not objected to. The court

replying to this: "Without considering the legal questions suggested, it is sufficient to say that we see no evidence that the defendant was compelled to submit to an examination. It is true the evidence shows that when Dr. Harman went into the jail the sheriff accompanied him, but there is no evidence that the sheriff did or said anything in respect to the examination. We think there is no error in admitting the evidence." State v. Struble, 71 Iowa, 11.

A prisoner on trial for crime cannot be required, against objection, to try on a shoe to determine whether tracks found at the scene of the offense were his own; nor if he objects, can he properly be required to measure the shoe after trying it on. But if he tries it on without objection, the ruling that he must measure it is not prejudicial error, as any witness could do it as well as he. People v. Mead, 50 Mich. 228.

A defendant on trial cannot be required to make evidence against himself by trying on shoes to fit tracks found near the scene of the offense. Stokes v. State, 5 Baxt. 619, 30 Am. Rep.

72.

"Take the case of Stokes. The prosecution sought to compel the defendant in the court-room to put his foot in a pan of mud, in order to identify the track thus made with a track found in mud of equal softness and similar character, made by a bare foot near the scene of the homicide. The court refused to compel the defendant to put his foot in it.' On appeal, the case reversed because this circumstance might have had an influence on the jury prejudicial to the defendant.

was

"It is argued that the act of the prosecution tended to compel the defendant to make evidence against himself. I am of opinion that too much importance has been attached and too much prominence given to the words, 'compelled to make evidence against himself.' The defendant Stokes, if he was the guilty person, was making evidence against himself when he put his foot in the mud near the scene of the homicide, and when arrested he could have been compelled to put his foot in that track, against his will, and if his foot corresponded with the track, that fact would have been admissible upon the trial of his case. State v. Graham, 74 N. C. 646, 21 Am. Rep. 493." Hawley, J., in State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530.

In a case of homicide the defendant makes evidence against himself by being compelled to surrender the weapon with which

the offense was committed, for it can always be used as evidence against him. A burglar is compelled to give evidence against himself, when he is forced to surrender false keys and other burglarious instruments found in his possession. A counterfeiter is compelled to give evidence against himself, when the dies he had manufactured and used are discovered and brought into court for inspec

tion.

The application of the principle sought to be enforced upon the reasoning of the court in State v. Jacobs, 50 N. C. 259, as being within the protection of the constitution, would, if logically carried out, apply to all these and many other similar cases.

In the case of Day v. State, 63 Ga. 669, the court held: "Evidence that a witness forcibly placed defendant's foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible." A defendant cannot be compelled to criminate himself by acts or words. The court says: "By the constitution of this state no person shall be compelled to give testimony tending in any manner to criminate himself; nor can one by force compel another against his consent to put his foot in a shoe-track for the purpose of using it as evidence against him on a criminal side of the court." Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717.

"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. None 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 the constitution to say that by the adoption of such a clause they have effectually closed the door of investigation tending to establish the truth." 6 Crim. L. Mag. 807; State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530.

§ 432. The Rule in Civil Actions for Damages.-There is a want of harmony in the decisions upon this point, that is suf

ficiently indicated by the statement, that in some jurisdictions the practice is held to be utterly unknown to the law, while still other jurisdictions view the entire topic as resting within juridical discretion. The Arkansas supreme court is in discord with both these views, and holds without qualification that physical examination is a matter of right residing in the party whom it is sought to mulet in damages. The case of Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584, illustrates this position. Sibley as receiver of a bankrupt railroad corporation was sued for damages by Smith for being forcibly ejected from a passenger train, and in consequence of which he claimed to have received serious internal injuries, for which the jury gave a verdict for $2,000 which was reversed. The appellate court after citing and commenting on several analagous cases, employed the following language: "The rule to be deduced from these cases is, that where the plaintiff in an action for personal injuries alleges that they are of a permanent nature, the defendant is entitled as a matter of right, to have the opinion of a surgeon upon his conditional opinion based upon personal examination."

This question is practically withdrawn from legal controversy by the recent decision of the United States supreme court in the case of Union Pac. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734. And see the dissenting opinion in this case in vol. 2, Rice on Civil Evidence, 1112.

It has been held in Georgia that it is within the discretion of the trial court to require the plaintiff, suing for a physical injury alleged to be permanent, to submit to a physical examination. See Richmond & D. R. Co. v. Childress, 3 L. R. A. 808, and note, 82 Ga. 719.

If physical condition of a party is material, he has a right, when giving his testimony as to it, to exhibit it to the jury, or to an expert called to describe the injury; but he has not a right to make unsuccessful efforts before them, as evidence in his own behalf, of his incapacity. Abbott, Trial Brief, § 257, citing Mulhado v. Brooklyn City R. Co. 30 N. Y. 370.

§ 433. Compulsory Production of Paper.-Where proceedings were in rem to establish a forfeiture of certain goods alleged to have been fraudulently imported without paying the duties thereon, pursuant to the 12th section of said Act, held that an order of the court made under said 5th section, requiring the