By the Court,
Hawley, J.
Tbe constitution of tbis state declares that no person shall be compelled, “in any criminal case, to be a witness against liimself.” (Art. 1, sec. $.)
On tbe trial of tbis case tbe court compelled tbe defendant, against bis objection, to exhibit bis arm so as to show certain tattoo marks tbereon to tbe jury (a witness having previously testified that such marks were upon tbe defendant’s arm). Was this compelling tbe defendant to be a witness against himself? What is meant by tbe constitutional clause above referred to ? Perhaps tbe best way of answering these questions would be to state tbe history which led to tbe adoption of this constitutional provision. A similar provision is found in tbe constitution of nearly every state of tbe union and in tbe constitution of tbe United States.
Iu tbe early history of England accused persons were compelled to testify in answer to any criminal charge brought against them. With the advancing spirit of tbe age it was claimed that no man ought to be compelled to accuse himself of any crime, and by degrees the rule was changed to its present state in accordance with what seemed to be the public sentiment of the country. Story, in bis commentaries on tbe constitution of tbe United States, says: That tbe insertion of tbis clause “is but an affirmance of the common law privilege.” It was, according to bis views, adopted to prevent tbe evils which had resulted from tbe custom of other countries in compelling criminals to give evidence against themselves and of being “subjected to the rack or torture in order to procure a confession of guilt.” (2 Story on tbe Const. 1788.)
[82]*82Blackstone claims that the trial by torture was unknown to the law of England. In referring to this custom he says: “It seems astonishing that this usage of administering the torture should be said to arise from a tenderness to the lives of men; and yet this is the reason given for its introduction in the civil law, and its subsequent adoption by the French and other foreign nations, viz.: because the laws can not endure that any man should die upon the evidence of a false or even a single witness, and, therefore, contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession, thus rating a man’s virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves.” (4Black. Com. 326.) This learned commentator, in order^tq^fully? espose the fallacy of this reason, quotes, with approval, the language of Tully, that notwithstanding pain governs those tortures, the quaestor rules and regulates as well the mind as the body of every one; desire inclines; hope bribes; fear enfeebles; so that in such a distressed state of things no room is left for the truth. It does, indeed, seem strange, at this day, that a people as intelligent and enlightened as the Bomans were did not earlier discover the utter futility of this mode of punishment to extract the truth. It may be, however, that the wisdom of future ages will discover and bring to light the errors of the system which we have adopted in the United States, in order to accomplish that very useful purpose. It has already been assailed by James Fitzjames Stephens, and other prominent and able writers on the criminal law.
I have referred to this subject, not for the purpose of pointing out or expressing any opinion upon the merits or demerits of any particular system, but to show as a fact that iu all countries and in all ages, whatever the law or custom may have been, it was always claimed as a reason for its adoption that it was calculated to discover the truth, and thereby promote the ends of justice. Such is claimed to be the rule of our constitution and laws upon this question.
The object of every criminal trial is to ascertain the truth. [83]*83The 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 “tobea 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 au 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 our Constitution to say that by the adoption of such a clause they have effectually closed the door of investigation tending to establish the truth.
Confessions of persons accused of crime, whenever obtained by the influence of hope or fear, are excluded because in considering the motives which actuate the mind of man they might be induced to make a false statement. Yet, notwithstanding the universality of this rule of law, whenever the confession, however improperly or illegally obtained, has led to the discovery of any given fact, that fact is always admitted in evidence, because the reasons which would have excluded the confession no longer exist. This is the governing and controlling principle of the law.
The constitution means just what a fair and reasonable interpretation of its language imports. No person shall be compelled to be a witness, that is to testify, against himself. To use the common phrase, it “closes the mouth” of the prisoner. A defendant in a criminal case can not 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 [84]*84to the weakness of human nature aucl the various motives that actuate mankind, a defendant accused of crime might be tempted to give testimony against himself that was not true.
The State v. Jacobs, 5 Jones, N. C. 259, and Stokes v. The State an unreported Tennessee case referred to in a note to vol. 1, Wharton’s Law of Evidence, sec. 347), have been cited and are relied upon to sustain the position that the act of compelling Ah Chuey to bare his arm was in violation of his constitutional rights.
In the Jacobs case the court decided that “ a Judge has not the right to compel a defendant in a criminal prosecution to exhibit himself to the inspection of the jury for the purpose of enabling them to determine his status as a free negro.” This decision was based upon two grounds: First, upon the general rule that a witness could not be compelled to furnish any evidence that would tend to criminate himself. Second, that the manner in which the defendant was compelled to exhibit himself was prejudicial to the defendant. I do not propose to deny the correctness of that decision, but I do insist that it can not be sustained upon the first ground stated therein.
In the subsequent case of The State v. Johnson, 67 N. C. 58, the court, in my opinion, declare the correct principle that governed the Jacobs case and distinguished it from the one then under consideration, viz.: In the Jacobs case the defendant was compelled to exhibit himself to the jury so that the “jury might determine by inspection his qualit}' and condition — his blood or race.” That was a matter to bo proved by the oath of witnesses who knew the facts, or it may be by experts.
It is a noticeable fact that in none of the subsequent cases in that state, where the Jacobs case was cited, have the courts sanctioned or in any manner approved of the first reasoning upon which the decision was based. Whilst they have taken especial pains to distinguish the facts in the respective cases, they have, without disturbing the decision, virtually refused to acknowledge the reasoning of the court as applicable to cases of a similar character.
[85]*85In The Stale v. Woodruff, 67 N. C. 89, where an issue of bastardy was being tried, the mother of the child, when examined as a witness, held the child in her arms, and the counsel in addressing the jury called attention to its features and commented upon its resemblance to the defendant, the child being still in its mother’s arms. This was held not-to be error.
Now, how could the jury determine the resemblance, unless they also examined the features of the reputed father? "Was he not compelled to furnish evidence against himself by exhibiting his face to the jury ? Surely, if the constitution protects a defendant, it could not possibly make any difference whether the defendant exhibited himself in sitting down or standing up; in allowing the jury to look at his features or the color of his hair; to look at a mark plainly visible upon his face or examine marks upon his person concealed by his ordinary clothing. Does he not furnish as much evidence against himself in the one case as the other? Looking, then, at the facts, and applying thereto the principles of common sense, did not Woodruff in the one case furnish more evidence against himself than Jacobs did in the other? If the broad mantle of this provision of the constitution covers the one case, it certainly does the other. But the truth is, that the difference' between the cases, as held by the respective courts, relates exclusively to the manner in which the defendant is compelled to exhibit himself, and is not in any way governed or controlled by the constitution.
It was admitted in the oral argument that a jury might look at the features of the defendant and examine marks upon any part of liis person not concealed by his ordinary clothing, so long as he was not compelled to exhibit liirp-self to the jury, but it was very earnestly contended that the inspection could go no further; that the defendtmt, under the facts of this case, could not be compelled to draw up his shirt sleeve so as to exhibit the tattoo mark upon his wrist or forearm, because such an act was compelling the defendant to furnish evidence against himself, in violation of a provision of the constitution.
[86]*86From a constitutional standpoint, what does ibis argument amount to ? If, in order to establish the identity of any defendant in a criminal case, it became necessary to examine a peculiar mark on the back of his neck, the admissibility of such an examination would, under the rule contended for, depend solely upon the size and style of his shirt collar. If he wore a turn-down collar, the mark would bo visible'without removing any of his ordinary clothing, and could be examined by the jury; but if he insisted upon the most approved fashion and wore a standing collar, close fitting to the neck, the mark would be concealed by his ordinary clothing and cduld not be examined.
In another case the defendant’s hair might be long enough to conceal any scar upon his neck; but, if he had his hair cut before coming into court, the barber’s shears — by clipping his curls — might destroy all protection given by the constitution.
The style of dress which men and women wear is regulated, to some extent, by the custom and fashion of the community where they reside. The admissibility of evidence of this character would, under the sound reasoning and logical view of this rule, fluctuate and change by the peculiar whims, caprice, fashion, or frivolity of the particular community where the defendant is tried. If the defendant is a woman, and the custom is for her sex to go closely veiled whenever appearing in public, if her identity is questioned and made to depend to some extent upon the presence of a peculiar scar upon her cheek, she would, under the sanctity of the constitution, be protected from removing her veil, and the jury would not be allowed to even examine the features of her face.
In The State v. Garrett, 71 N. C. 85, the defendant was indicted for murder. On the night of the homicide, defendant stated to the persons present that the deceased came to her death by her clothes accidentally catching fire while deceased -was asleep, and that she (defendant), in attempting to put out the flames, “burnt one of her hands.” At the coroner’s inquest, the defendant was compelled to unwrap the hand she stated had been burnt and exhibit it [87]*87to a j:>hysician there present, “ and there was no indication of any burn whatever upon it.”
Upon the trial of the case, “ the court ruled that anything the prisoner said at the inquest was inadmissible: but that the actual condition of her hand, although she was ordered by the coroner to unwrap it and exhibit to the doctor, was admissible as material evidence to contradict her statement to the witness on the night of the homicide.” This ruling was sustained by the supreme court. How is it that the constitution would not reach this case as well as the case of Jacobs ? Is it because Jacobs was compelled to exhibit his head in court, whereas Garrett Avas only compelled to exhibit her hand to a physician at a coroner’s inquest ? Is the force of the constitutional provision limited to acts within the walls of a court-room ? Can it be possible that it has no application out of sight of the particular “temple of justice ” where the case is tried ? Could a defendant be compelled against his objection to open his mouth and testify upon his preliminary examination before a committing magistrate ? Would other Avitnesses avIio were present at such examination be allowed to detail upon the trial the testimony so given ? Is there not a broad and substantial distinction betAveen the testimony given by a defendant under oath, or statements made under a false promise or improper inducement, upon the one side, and evidence of physical facts obtained from such testimony, or in any other manner, on the other side ?
If the constitution Avas applicable to Jacobs’ case, and protected him from being compelled to give evidence against himself by exhibiting his head to the jury, then it ought to have been applied to Garrett’s case, and protected her from being compelled to give evidence against herself by exhibiting her hand to the physician at the coroner’s inquest.
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 lxomieide. The [88]*88court refused to compel the defendant “to put bis foot in it.” On appeal, the case was reversed because this circumstance might have had an influence on the jury prejudicial to the defendant.
It is argued that the act of the prosecution tended to compel the defendant to make evidence against himself. I a.m 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 jout 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.)
Iu 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 inspection.
The application of the principle sought to be enforced upon the reasoning of the court in Jacobs’ case, as being within the protection of the constitution, would, if logically carried out, apply to all these and many other similar cases.
From whatever standpoint this question can be considered, the truth forces itself upon my mind that no evidence of physical facts can, upon any established principle of law, or upon any substantial reason, be held to come within the letter or spirit of the constitution. The question of whether or not the court erred in compelling the defendant Ah Chuey to exhibit his arm must, in my opinion, be determined upon other grounds. . Was the defendant compelled to exhibit himself in such a manner [89]*89afe^to^iinjustly or improperlyjprejudice bis case before the jury? Did tbe act in question bave a tendency to degrade, humiliate, insult or disgrace tbe defendant? Did tbe judge, by tbe act in question, convey to the jury tbe idea that be believed tbe defendant to be guilty of tbe offense charged against him ? If either of these questions ought to be answered in the affirmative, then I think tbe defendant should be granted a new trial. A defendant in a criminal case is entitled to a fair and impartial trial, free from insult or obloquy, and courts cannot be too particular in guarding bis personal rights and privileges. He should never be compelled to make any indecent or offensive exhibition of bis person for any purpose whatever. Tbe judge presiding at tbe trial should not express any opinion upon tbe facts (State v. Tickel, 13 Nev. 502, and tbe authorities there cited), or compel tbe defendant to do any act which would clearly convey to tbe jury an intimation that tbe defendant was guilty of tbe offense charged, or to exhibit himself in such a manner as to prejudice bis case before tbe jury.
Tbe guilt or innocence of tbe defendant is a- question to be determined by tbe jury, free from any improper influence of any kind or character whatever. Tbe cases of The State v. Jacobs and Stokes v. The State are authorities worthy of consideration upon this branch of this case. Every case, however, where these questions arise, must necessarily be decided upon its own peculiar facts and circumstances. It is not shown that there was anything indecent or offensive in the mere exhibition of defendant’s arm to the jury. It does not appear to me that such an act would have a tendency to insult, degrade or humiliate the defendant.
After giving to all these questions unusual deliberation, my conclusion is that the act of the court in compelling the defendant to exhibit his arm did not tend, independent^of the fact of the tattoo marks being found, to' improperly influence or prejudice the defendant’s case before'the jury.
From time immemorial it has been the custom in this country, sanctioned by the constitution and laws of the [90]*90respective states, to identify persons accused of crime by examining tbe peculiar color of their hair, the peculiarity of their features, conspicuous scars upon their persons, the want of an eye or tooth, “or any other visible defect or mutilation.” (Burrill on Circumstantial Evidence, 639-651.) Marks made by wounds upon the person of an offender given with a weapon in the hands of an assaulted party, corresponding with marks visible upon the person of the prisoner, have always been considered as a strong crim-inating circumstance tending to establish the identity and guilt of the accused pierson. (Burrill on Circumstantial Evidence, 641.)
In discussing the various means of identifying persons this author says: “There are cases, again, in which the identity being positively sworn to, and as positively denied, the witness résorts to another class of circumstances as tests of the accuracy of his testimony, such as marks upon the person not prominently visible, or even such as are quite concealed by the ordinary clothing, and thus invisible to any but one who has been intimately acquainted with the subject, and who consequently possesses the most complete means of knowing its identity.” (Burrill on Circumstantial Evidence, 644.)
Many cases are cited in the books where evidence of this character has been admitted; and, although not always conclusive, it has frequently been very efficacious in enabling juries^ to^satisfactorily)determine the disputed question of identity. I sUSITrefer to but one case. Joseph Parker was indicted and tried for bigamy, at the Court of Oyer and Terminer in New York, in 1804, under the name of Thomas Hoag, alias Joseph Parker. Numerous witnesses were examined, who stated, in positive terms, that they knew defendant was Thomas Hoag. Many peculiarities in the features, voice, style and habits were testified to; also the fact of “ a scar on his foreb ead, partly covered by his hair, and another scar on his neck.” These peculiarities were all observable in the prisoner. On the other hand witnesses were equally positive that the defendant was not Thomas Hoag, but was Joseph Parker. Finally, “ among the marks [91]*91sworn to have been observed on the person of Thomas Hoag, was a large and visible scar under one of his feet, occasioned by his having trodden on a drawing-Imife, which some of the witnesses swore they had seen. This proved to be a decisive circumstance in the prisoner’s favor. For, on exhibiting his feet to the jury, not the least mark or scar could be seen upon either.” (Burrill on Circumstantial Evidence, 650.)
This case brings to mind another view of the constitutional phase of this question.
Under the law, as it existed for many years in the several states, a defendant wras not allowed to testifv.in his own behalf. If the principle contended for by appellant is coi>\ rect Parker ought not to have been allowed to exhibit his ] feet to the jury, because this was allowing him to make evi^^. deuce in his own behalf. Would any court in Christendom,, ■in construing such a law, refuse to allow the defendant To establish a fact in his own favor in the manner allowe.¿ jn Parker’s ease?
To illustrate this proposition. Suppose the truth to have been that the defendant in this case was really Sam G-ood, as he claimed, and not Ah Chuey, as was claimed by the prosecution; that the witness Ehoades was mistaken in his testimony, and that the laws of the State prohibited a defendant from testifying in his own behalf, and the court had refused to allow the defendant to pull up his sleeve so as to exhibit his arm for the purpose of showing as a fact that there was no tattoo mark thereon as testified to by the witness Ehoades. Could such a ruling have been sustained upon the ground that the exhibition of his atm was allowing him to testify in his own behalf? Certainly not. Why? Because that law, as Avell as the clause of our state constitution, relates to testimony given by the defendant or statements made by him, and can not be applied to prevent the ascertainment of the truth as to the existence or nonexistence of any scar or mark upon the defendant’s person by allowing him in the one case or compelling him in the other to exhibit the fact to the jury.
In discussing the questions involved in this case I wish [92]*92it to be distinctly understood that it lias not been my intention in any manner, shape, or form to deny the correctness of the general and well-established principle of law that a witness can not, either in a civil or criminal case, be compelled to give any testimony which would have a tendency to convict him of any criminal offense. This principle applies as well to the production of letters or documents, the contents of which would tend to criminate him, as to his oral testimony. But of all the numerous authorities upon this point to which my attention has been called, there is but one, that of The State v. Jacobs, which, in my opinion, has attempted in anyway to apply that principle to the facts of a case at all analogous to the one under consideration. I have endeavored to show that the Jacobs case could not be sustained upon that ground, either under the provisions of the constitution or upon any principle of the common law.
One other question remains to be considered. Is there any evidence in the record tending to establish the fact that Ah Tong (the person alleged to have been killed by Ah Chuey) is dead ? Proof of the corpus delicti may be established by circumstantial evidence, provided it is satisfactory.
“Even in the case of homicide,” says Greenleaf, “ though ordinarily there ought to be testimony of persons who have seen and identified the body, yet this is not indispensably necessary in cases where the proof of the death is so strong and intense as to produce the full assurance of moral certainty.” (3 Green, on Ev., sec. 30.)
Upon the question of the identity of deceased persons, Wharton says: “It may be regarded as settled law that although it is necessary, in a case of murder, that identity should be proved, yet this identity may be shown as effectively by inferences from facts, as from the positive testimony of witnesses who saw the alleged body of the deceased.” (Wharton’s Law of Homicide, sec. 640.)
It is shown by the testimony of white witnesses that the house where the dead body (claimed by the prosecution to be the body of Ah Tong) was found, was used as a Chinese [93]*93wasb-bouse; that All Tong was the proprietor; that be was assisted in the business by two other Chinamen; that these three persons were usually at the house; that the wash-house was being used as usual on the day of the homicide; that some human being therein was killed; that the house was consumed by fire after the homicide occurred; that the body of the deceased Avas badly charred by the fire; that Ah Tong had never been seen after the homicide occurred, and that the other occupants of the house had been seen and were alive.
These circumstances, Avithout referring to any other testimony, tended to establish the fact that the body found in the wash-house was the body of Ah Tong. This being true, the verdict of the jury establishing the identity will not be disturbed. (State v. Williams, 7 Jones, N. C. 446.) The testimony in the bill of exceptions points directly to the defendant as the person avIio committed the offense.
I am of opinion that the judgment of the district court ought to be affirmed, and the court below directed' to fix a day for carrying the sentence into execution.
It is so ordered.