State v. Griswold , 67 Conn. 290 ( 1896 )

Andrews, C. J.

The defendant was tried to the jury upon ap information charging him with the crime of arson, and in another count with setting fire to the same building with the intent to defraud an insurance company. Among other testimony, the State offered evidence of certain acts done by the accused showing preparation for the fire, as well as his subsequent conduct apparently influenced by the fact that he had set the fire or had known that it was going to happen. To illustrate and explain this conduct, the State offered in evidence a small package consisting of the envelope with the marks upon it, and its contents, which are described in the finding. It is admitted — and the fact is so — that this package was in its nature pertinent and admissible to be laid before the jury, and in connection with it the other testimony in the case became highly incriminatory evidence against the accused. His counsel objected to its being shown in evidence. The counsel said this article ought not to be exhibited in evidence to the jury, because of the manner in which it was found in the room of the accused and taken therefrom by the police officers; that such taking and production in evidence was in violation of the eighth and ninth sections of article 1 of the Constitution of this State. When this objection was made the trial judge excused the jury, and in their absence proceeded himself to hear the evidence upon the question so raised. The accused testified and was cross-examined. Other witnesses were also heard, and upon the evidence so taken, the judge found that the office of the accused, at the time when this envelope was found by the police officers and taken away by them, was in the care and possession of one Butler, as the servant and agent of the accused ; and that said Butler gave permission to the officers to enter the office, to make the said search therein, assisted them in making the search and consented to the taking away by them of the said articles. The judge thereupon admitted them to be laid in evidence before the jury.

This finding is, in effect, a decision that the search was not an unreasonable one, and that there was no “seizure ” of anything ; and that the accused must be holden to have consented to the taking away by the officers of the said articles. The evidence upon which this finding was made is not before us, and we are not able to review the finding, even if for any cause it was desirable to do so.

Counsel for the accused argue that this finding, although it shows that Butler was in charge of the defendant’s office at the time, does not show that he was the agent of the defendant for the purpose of admitting the police officers and consenting to the search and to the taking away of the said articles. We must assume, notwithstanding this argument, that the precise objection made in this court was made in the Superior Court and decided adverse^ to the defendant; otherwise the defendant has no standing to be heard here. This finding of the Superior Court might, perhaps, be treated as decisive of the first reason of appeal, because it shows that there has been no violation of the Constitution of this State, or of the United States.

We do not, however, place our decision on this ground alone. A constitution is that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised; and its provisions are the rule of conduct for those branches of the government which exercise the sovereign power. Both the sections cited by the defendant, have reference to the security of the citizen as to his possessions and as to his person. The eighth section forbids the legislature to enact any statute, and the courts from passing any rule, which would authorize any unreasonable search or seizure of the goods of a citizen. And the ninth forbids any legislation or rule of court which would compel any one accused of a crime to give evidence against himself. In this respect neither of the sections so cited have any application to this case. The act of the police was not directed, nor is it sought to be justified, by any statute or by any rule of any court. The theory of the defendant is that that act was a trespass. For the present purposes that theory may be granted to be the true one. And what then ? The police officers would be liable in a proper action to pay to the defendant all damage they had done him. But that consequence does not affect the question now before us. It does, however, show that the eighth section of article 1 has no bearing upon the facts of this case. Indeed the defendant hardly claims that the eighth section alone affects his objection. But he does claim that a search or a seizure may be so made, that the production in evidence of any of his goods or possessions taken, is to compel the accused to furnish evidence against himself; and in that way to become a violation of the ninth section of the first article of the Constitution. This might be the result where the private papers of a suspected person were seized in order to be read to the jury as incriminating evidence against him. To reach this result the word “ papers ” in the eighth section of article 1 must be taken to mean writings, — not pieces, of paper as mere inanimate goods, but papers on which are written or printed words that may be shown in evidence as the words of the suspected man. In this sense a search or seizure of the “ papers ” of a citizen might be unreasonable, because it might lead to a violation of the provisions of the ninth section. In Boyd v. The U. S., 116 U. S., 616, an Act of Congress was held to be unconstitutional, because it required the party to produce his books, invoices and papers, and because the “ entries ” in the books, invoices and papers so produced, were to be made evidence against him. See also Ordronaux, Const. Legislation, 247; 1 Hare’s Amer. Const. Law, 531. It was against the seizure of “ papers,” using that word in the sense just mentioned, that the vigor of Loud Camden’s opinion in Entinck v. Carrington, 19 How. St. Tr., 1029, was directed.

The package here shown to the jury was an envelope with certain inclosures, — a simple piece of the defendant’s personal property; having of itself no voice or meaning so far as his guilt or innocence was concerned, any more than if it had been a lump of clay, or a block of senseless wood. It made no statement. It gave no evidence. Its presence or absence on the trial, if it had stood alone, would have signified nothing. It was his conduct in respect to this piece of ■property, both before and after the fire, his extreme solicitude to save it from destruction, which was incriminating. This conduct was detailed to the jury by sundry witnesses, and to their testimony no objection was made. We think no constitutional provision was violated by permitting the jury to ■see the envelope. And even if it had been taken from the possession of the defendant by a trespass, as he claims, that would have been no valid objection to its admissibility. 1 Greenleaf’s Ev., § 254 a ; Wharton’s Crim. Ev., § 678 ; Commonwealth v. Dana, 2 Met., 329; Legatt v. Tollervey, 14 East, 302; Jordan v. Lewis, ibid., 305 (n.) ; Phillips on Evidence, p. 426; State v. Jones, 54 Mo., 478; State v. Garrett, 71 N. Car., 85; State v. Flynn, 36 N. H., 64, 70; Commonwealth v. Tibbetts, 157 Mass., 519, 521; Commonwealth v. Brown, 121 id., 69, 81; Commonwealth v. Welch, 163 id,, 372; Commonwealth v. Brelsford, 161 id., 61; Chastang v. The State, 83 Ala., 29; Spicer v. The State, 69 id., 159 ; Sampson v. The State, 54 id., 241; Siebert v. People, 143 Ill., 571; Grindrat v. People, 138 id., 103, 111; Painter v. People, 147 id., 444, 466.

The defendant further insists that the trial court erred in permitting certain questions to be asked of him on cross-examination, concerning his trip to Old Point Comfort. The statute of this State permits any person on trial for a criminal offense, at his own option to testify. The defendant chose to avail himself of this privilege. By so doing he subjected himself to the same rules, and was called upon to submit to the same tests, which could by law be applied to other witnesses. Having availed himself of the privilege of the statute, he assumed the burden necessarily incident to the position. Having elected to become a witness in his own behalf, he occupied for the time being the position of any other witness, with all its duties and obligations. State v. Green, 35 Conn., 203; State v. Ober, 52 N. H., 459; Commonwealth v. Smith, 163 Mass., 411, 431; Commonwealth v. Mullen, 97 id., 545; McGarry v. The People, 2 Lans., 227; Connors v. The People, 50 N. Y., 240.

All cross-examination is intended to afford the jury or the court a test by which to weigh the testimony that the witness has given. In this case the cross-examination of the defendant tended to show that he had made a willfully untrue statement in his direct examination. It was proper that the questions should go far enough to make it entirely clear whether there had been such an untrue statement or not. We think it was fairly within the discretion of the court to permit the questions to which objection was made; not because they tended to show adultery in another State, but because they tended to show perjury on the trial then in progress.

The questions asked in cross-examination of the witnesses Ames and Fairbanks were properly excluded, and for the reason assigned by the trial court: that they would raise a collateral issue. Take one instance to illustrate all: The witness Fairbanks was shown a collection of slips of paper, on each of which there was handwriting, and he was asked, “ How many handwritings do you find there ? ” These pieces of paper had not been in the case; the writing on them was not admitted or claimed to be that of the defendant or of the witness Jackson. Any possible answer that the witness might have given to the question would have been utterly meaningless, unless other evidence was admitted to show that the answer was incorrect. And then the door would be opened to an unlimited inquiry, collateral to the question on which the jury was to pass. 1 Greenl. Ev. § 449; Tyler v. Todd, 36 Conn., 218, 222; Bacon v. Williams, 13 Gray, 525; Odiorne v. Winkley, 2 Gall., 51, 53.

There is no error.

In this opinion Fenst and Hamersley, Js., concurred.