This is an appeal from a judgment of the Vanderburgh Circuit Court in which the appellant was convicted of operating a motor vehicle while under the influence of intoxicating liquor. There are two main questions involved in this appeal, the disposition of which will make unnecessary a consideration of other points raised. The record shows that the appellant, prior to trial, waived a trial by jury and asked to be tried by the judge. The record does not show that the prosecuting attorney was present at the time or that the court took any action thereon. At a later date the prosecuting attorney asked for a trial by jury, to which the appellant objected, and requested that the trial take place before the judge, without a jury. The court overruled the objections and request of the appellant and impaneled a jury which heard the case. The appellant claims error accordingly, and that he had a right to be tried before a judge without a jury as requested.
The appellant contends that the right of trial by jury is a privilege belonging solely to the defendant in a criminal case, which he may waive at his option. Article 1, Section 13 of the Constitution of Indiana provides in part:
The first Constitution of the State of Indiana provided that in all criminal cases "the right of a trial by jury shall remain inviolate." (Constitution of 1816,
We have read with interest the article of Prof. Jerome Hall in 18 Amer. B.A. Journal (April, 1932, 226). It summarizes neatly various contentions made on the issue such as we have here. In reviewing a case before the Supreme Court of Illinois he says:
We may observe here that because of the fact that a defendant is guaranteed the right to a trial by jury, it does not necessarily follow that he has a correlative right to be tried without a jury if he desires. There is nothing in the Constitution of the State of Indiana, so far as we can find, which guarantees a defendant a trial before a judge without a jury. There is nothing in the Constitution which prevents the legislature of this State from providing that all trials in criminal cases shall be by jury, since this does not deprive the defendant of any constitutional right. The legislature of this State has so provided except where, by consent of the parties and the court, a jury trial is waived.
Burns' § 9-1803 provides:
We are not unmindful of the recent case of The People v. Spegal (1955), 5 Ill.2d 211, 125 N.E.2d 468, upon which the appellant here places great reliance. In that case the Supreme Court of Illinois reversed itself and held that a defendant may waive his right to a trial by jury and insist upon a trial before the judge in a criminal case. A careful analysis of that well-written opinion reveals that it repudiates the theory enunciated in a previous opinion of the court of that state, namely, that there follows, by necessity, from the right to a jury trial and the privilege of waiving a jury trial, that any legislative restraint upon the privilege to waive is an infringement upon the judicial power of the court. The People v. Spegal, supra, holds that the legislature has the constitutional power to determine in criminal cases when and how a defendant may waive his constitutional right to a jury trial. The Illinois statute in question provided:
Our examination of that opinion reveals that it turns upon this legislative enactment. The court there held that the defendant was entitled to waive the privilege to a trial by jury and the State was deprived of a jury trial by the Illinois statute. The Illinois statute under which the Spegal Case was decided and the Indiana statute with which we are dealing in this case are clearly distinguishable. We have given some consideration
In Murphy v. The State (1884), 97 Ind. 579, the defendant and State agreed to submit the trial to the judge without intervention of a jury. After conviction, on appeal the defendant urged that the statute in question was unconstitutional, which provided for such a waiver. The court said at p. 585:
Cases in jurisdictions where no statutory restrictions are placed on the waiver or where the State is given no right to a jury trial should be distinguished from those having such legislation.
We recognize the argument presented in most of the discussions of the right of the State to a trial by jury and the denial of the defendant's right to waive the privilege that emotional prejudices and pressures often affect juries; that the prosecutor in such events is turning a shield intended for the protection of the defendant into a sword, to the injury and detriment of
As stated in Commonwealth v. Rowe (1926), 257 Mass. 172, 180, 153 N.E. 537, where the court had under consideration an act of the legislature limiting the right of waiver to a jury trial:
In view of the statute in our State that all criminal trials must be by jury except where consented to by both the parties and the court, we hold the appellant was not entitled under the record to a trial without a jury over the objection of the State. The trial court committed no error in granting the State a jury trial.
The appellant raises a further question with reference to the evidence heard at the trial. While a police officer was on the stand, he volunteered, over the objections of the defendant, the statement that the defendant refused to take a drunkometer test.
Where the question of the admissibility of a drunkometer test has arisen before a court, it has generally turned upon the point as to whether or not it was submitted to voluntarily. We have held that when the evidence discloses that the accused freely and voluntarily consented to the test, it
The United States Supreme Court has held the use of a stomach pump against the will of the accused to recover capsules containing morphine swallowed by the accused was in violation of his constitutional rights. Rochin v. People of California (1952), 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R. 2d 1396.
Justice Douglass said in the above case (342 U.S., at p. 179):
and Justice Frankfurter said (342 U.S. at page 173):
We do not have here a case of physical invasion of the body of the accused to obtain evidence to be used against him; nor do we have threat or force used to obtain the test in violation of due process. This is a case of admitting over objections, evidence of the "refusal" to permit a test or examination. It would seem if evidence obtained against the will by a forced physical invasion is not admissible, then a "refusal" to submit to
On the other hand, such cases should be distinguished from those where there is a refusal to permit an examination or test which is legal and constitutional, as a mental examination, or a physical examination such as comparing footprints, fingerprints and such related tests. State ex rel. Mavity v. Tyndall (1947), 225 Ind. 360, 74 N.E.2d 914, Cert. Den. 333 U.S. 834, 68 S.Ct. 609, 92 L.Ed. 1118; Voelker v. Tyndall (1947), 226 Ind. 43, 75 N.E.2d 548; Biggs v. State (1929), 201 Ind. 200, 167 N.E. 129, 64 A.L.R. 1085; Ross v. State (1932), 204 Ind. 281, 182 N.E. 865; O'Brien v. State (1890), 125 Ind. 38, 25 N.E. 137, 9 L.R.A. 323.
In O'Brien v. State, supra, the accused refused to permit an examination of his body for certain marks and scars. He was handcuffed and the physical examination forcibly made against his will. He objected on trial to any testimony as to the marks and scars thus obtained. This court in holding the evidence admissible said (p. 43):
Similar constitutional questions have arisen with reference to taking fingerprints and keeping them on file even after the accused has been found not guilty. Judge Gilkison said in sustaining police action in that connection:
We are not concerned here merely with the due process clause of the United States Constitution, but also with the State Constitutional provision that:
The constitutional provision is limited to "testimonial compulsion" alone. Wigmore says:
Wigmore also points out the difference in principles under which extrajudicial confessions become inadmissible because of force or threats, and "testimonial compulsion" brought about by legal process as a witness in a court room. 3 Wigmore on Evidence, 3d Ed., Sec. 823(c), p. 249.
Greenleaf on Evidence says concerning the scope of the provision against self-incrimination as a witness against one's self that there has been an unwarranted tendency in some courts to extend the privilege to situations that are outside the court's processes:
The cases involving the admissibility of evidence in a criminal case of the refusal of the accused to produce in court documents, books or papers after notice to do so involve "testimonial compulsion" and are not in point. The refusal in such cases was directed at the legal process by which the evidence was sought to be produced in court. Evidence of such refusal to comply with such process is not admissible. McGinnis v. State (1865), 24 Ind. 500; Sprague v. State (1932), 203 Ind. 581, 181 N.E. 507.
For the reasons stated the constitutional provision against self-incrimination is not applicable in this case since no legal process was used to force testimony from the accused as a witness. The appellant laid no foundation as a basis for his objection to a motion by showing that the proposed test would constitute a physical invasion of the accused's body. A proposal to draw blood from the accused's body for a test against his will would certainly constitute a violation of his rights, but the record is silent in that respect. Alder v. State (1958), 239 Ind. 68, 154 N.E.2d 716.
There are various kinds of drunkometer tests. There is no evidence as to the nature or method proposed to be used in the making of the test in this case and whether or not it would require a physical invasion of the accused's body. If the State had the right to make such tests, then the refusal to permit the same would be competent evidence; on the other hand, if it was illegal to force the test upon the accused, then evidence of a refusal to permit the test would be just as inadmissible as the evidence obtained from the illegal act. The jury would not be entitled to
We recognize the line to be drawn between the use of a stomach pump and the taking of finger prints or the examination for identification marks is rather difficult. We are not unmindful that hypothetical situations can be imperceptibly shaded from one field to the other by seemingly logical extensions. We frequently have such twilight zones in the law where nevertheless a line must be drawn between night and day, or right and wrong. Those are hard but unavoidable problems for the courts. The Constitution is intended to preserve practical and substantial rights, not mere theories.
In State v. Gatton (1938), 60 Ohio App. 192, 20 N.E.2d 265, it is pointed out that crime detection must keep pace with modern means of travel, methods of escape and concealment of crime, and that finger printing does not violate the constitutional provision in question. Gardner v. Commonwealth (1954), 195 Va. 945, 81 S.E.2d 614; State v. Benson (1941), 230 Iowa 1168, 300 N.W. 275; 2 Wharton, Criminal Evidence, 12 Ed., sec. 663, p. 575.
The reasoning is sound. Evidence given, not by the accused as a witness on the stand, but by another witness who observed his conduct, demeanor, mental condition
We hold that there was no error in the admission of the evidence of a refusal to take a drunkometer test where there is no evidence to show such a test would involve a physical invasion of the accused's body, which amounts to a violation of due process.
Appellant also complains of the overruling of objections to testimony about a so-called physical reaction test given the appellant. This test consisted of such actions as attempting to touch the tip of the nose with the right index finger, etc. The evidence shows the appellant submitted voluntarily to such tests. As stated above, all such voluntary acts and conduct of the appellant bearing on his guilt or innocence are relevant and admissible. Certainly his ability to perform simple or uncomplicated physical acts at or near the time of the alleged offense is relevant.
The other points raised in appellant's motion for a new trial were either waived by failure to discuss them in the brief, or concern rulings on objections which appear to have been harmless. Rule 2-17(f); Shively v. State (1957), 237 Ind. 17, 141 N.E.2d 921; Deig v. State (1928), 200 Ind. 125, 160 N.E. 673.
Judgment is affirmed.
Landis, C.J. and Achor and Bobbitt, JJ., concur.
Jackson, J., not participating.
NOTE. — Reported in 156 N.E.2d 888.