Chastang v. State

83 Ala. 29

• Court: Supreme Court of Alabama
• Decided: December 15, 1887
• Status: Published

Opinion

STONE, C. J.

— An officer, having a warrant for the arrest of defendant, attempted to execute it, when the latter made demonstrations of resistance, by moving his hand in the direction of the pocket, or place on his person, where pistols are frequently carriecP Thereupon another officer, aiding the first, pointed a pistol at defendant, and commanded him to hold np his hands, which he did. ' The defendant was then arrested; and, proceeding to disarm him, a pistol was found concealed in his hip pocket. This is the substance of all the criminating evidence.

It was objected in the court below, and the objection is renewed here, that the search of the defendant’s person was a trespass, unauthorized by law, and that the testimony thus obtained was illegally admitted, against the objection of the defendant. If it were necessary, it might present a grave question, whether an officer, authorized to arrest for a criminal, or supposed criminal offense, may not and should not disarm the accused of all weapons, or other implements, which could be made useful in effecting an escape. But we will place the decision of this case on broader grounds.

We have read the able opinion of Justice Bradley in the case of Boyd v. United States, 116 U. S. 616, and confess ourselves interested and instructed thereby. We indorse and approve everything said therein. The proceeding in that case was under a statute highly penal, the violation of which exposed the offender to a heavy forfeiture. The order of the court required the defendant to produce in evidence against himself a strictly ^private paper or document, under the penalty, if he disobeyed the order, of having the imputed contents of the alleged document treated as confessed b.y him. This, it was held, was compelling the accused to furnish evidence against himself.

In the present case, the defendant was required to produce nothing, to testify to nothing, and no presumption was indulged against him, as a penalty for his failure to comply with any order of court. If our statute had provided that, under an indictment for carrying a weapon concealed about the person, the defendant might, under the order of the court, be required to produce the alleged weapon, and, on failure to comply, the presumption would be indulged that he had such weapon concealed about his person, then the defendant would be required to furnish evidence against himself. Then we would have a question in all respects like the one considered in Boyd v. United States, supra.

When, as in this case, the evidence is obtained without requiring the defendant to do any affirmative act, the testimony is admissible.

The Circuit Court did not erf in admitting the evidence, nor in the charge to the jury. — Spicer v. The State, 69 Ala. ; Sampson v. State, 54 Ala. 241; State v. Flynn, 36 N. H. 64; 1 Greenl. Ev., § 231; Whar. Cr. Ev., § 678.

Affirmed.