
    CRIMINAL LAW — INTENT—EVIDENCE—TRIAL.
    [Jefferson Circuit Court,
    November Term, 1901.]
    Burrows, Uaubie and Cook, JJ.
    William Coles v. State of Ohio.
    1. How Intent to be Proven.
    In a trial upon indictment containing two counts, one for assault witbl|intent to rape and the other for assault with intent to rob, the intent is a substantive part of the offense and must be proven beyond a reasonable doubt.
    2. Intent — Rule in Reviewing Court as to Quantum oe Proof.
    In such case the reviewing court, in passing upon the question as to whether or not the verdict is clearly against the weight of the evidence,will take into consideration the rule as to the quantum of proof necessary to convict in the lower court.
    3. Rights oe the Accused Under State and Federal Constitution.
    Where, during the examination of the prosecuting witness, the accused, at the request of the prosecuting attorney, was ordered by the court to stand up and turn his back to the witness, over the objection and exception of his counsel, that she might the better be able to identify him, and thereupon the prosecuting witness testified that the party that assaulted her was a short man like the accused: Held, that the action of the court was notfa violation of the rights of the accused under Sec. 10 of the bill of rights of the constitution of Ohio or of the fifth amendment of the constitution of the United States which provides that no person be compelled, in any criminal case, to be a witness against himself.
    Heard on Error.
    Erskine & Erskine and Dio Rogers, for plaintiff in error.
    A. C. Lewis, for defendant in error,
    cited:
    I. The state is not expected, and cannot be required, to make a proof of felonious intent, as a fact, by direct and positive evidence. 3 Rice Ev., Sec. 286; Padget v. State, 3 N. E. Rep. 377 [103 Ind. 500].
    II. Intent in a case of a charge of assault with intent to murder need not be shown by direct and positive testimony, as it may be inferred from the circumstances. 1 McClain, Sec. 275; 1 Clark & Marshall, Sec. 145.
    III. The intent or intention is manifested by the facts and circumstances connected with the perpetration of the offense, and the sound mind and the discretion of the perpetrator. Desty Crim. Law, Sec. 6.
    IV. It is constantly laid down that intent at the time of action is enough. 1 Wharton Crim. Law, 117..
    V. No visible act of robbery need be shown. Desty Crim. Law, Sec. 142 G.
    VI. The question as to the intent with which an assault was committed is a question of fact, and if there is evidence tending to prove that the intent was as alleged in the indictment, the verdict will not be set aside on the ground that the evidence is insufficient to sustain the verdict. State v. Estrada, 53 Cal. 600; 2 Am. & Eng. Ene. Eaw (2 ed.) 1000; 1 Bishop Crim. Eaw, Secs. 760, 772 A.
    VII. Change of intent or abandonment of purpose does not reduce the offense. Craighead v. Peterson, 72 N. Y. 279; 28 Am. Rep. 150,152; 1 Wharton Crim. Eaw, 147.
    VIII. The force of the gainful motive to crime, when awakened by the sight or the idea of some coveted material object within apparent reach is often so great and urgent as to overcome all considerations of possible or even probable danger or injury or loss to be encountered in the attempt to gratify it. Burrill Circum. Ev., 286.
    IX. Intent is usually, if not always, established by inquiries from the environing acts and circumstances, but rarely, if ever, by direct proof. State v. Woodard, 50 N. W. Rep. 885, 886 [84 la. 172].
    X. The presence or absence of intent must be gathered by considering all the facts and circumstances, and all that was said and done, or omitted to be done in determining whether the acts were accompanied by a criminal or fraudulent purpose; and subsequent conduct may be considered as well as prior or contemporaneous. State v. Meyer, 10 Re. 746 (23 Bull. 251, 252).
    XI. In a prosecution for assault and battery, felonious intent need not be shown by direct and positive evidence, and if there is any evidence whatever going to show it, and not an entire failure to prove, the Supreme Court will not reverse on the ground that such evidence is indirect and unsatisfactory. Padgett v. State, 3 N. E. Rep. 377 [103 Ind. 500].
    Supplemental brief for defendant in error.
    1. As to whether it was error on the part of the court to order the accused to stand up for inspection by the witness and jury: Wharton Cr. Ev., Sec. 315 ; 1 Greenleaf Ev. pp. 27, 28n; Underhill Crim. Ev.,Secs. 53, 54; State v. Hall, 44 N. W. Rep. 914 [79 la. 674]; Garvin v. State, 52 Miss. 207, 209; State v. Wieners, 66 Mo. 13; People v. Gardner, 38 1ST. E. Rep. 1003 [144 N. Y. 119, 120,127,130; 28 E. R. A. 699 ; 43 Am. St. Rep. 741]; State v. Reasby, 69 N. W. Rep. 451 [100 la. 231] ; Johnson v. Commonwealth, 9 Atl. Rep. 78 [115 Pa. St. 369, 370, 395, 396]; State v. Ah Chuey, 14 Nev. 79 [33 Am. St. Rep. 530]; People v. Mead, 15 N. W. Rep. 95 [50 Mich. 228].
   COOK, J.

Two questions are made in this case by counsel for plaintiff in error:

First. That the verdict is not sustained by the evidence.

Second: That the action of the court upon the trial, by which the accused was compelled to stand up for the better inspection of his person by the prosecuting witness, was a prejudicial violation oí his constitutional privilege and rights.

Upon the first proposition the special complaint of counsel is that the evidence was not sufficient to show the intent.

The accused was charged in the indictment with assault with intent to rape and with assault. with intent to rob. The jury convicted of assaült with intent to rob. In determining the question, we concede the correctness of the claim of counsel that the intent in a case of this character is a substantive part of the offense, and that, in order to convict of the higher offense, the intent must be established beyond a reasonable doubt; and that, in reviewing the judgment of the lower court upon this question this court must take into consideration the amount of proof necessary to work a conviction; and if the verdict is clearly against the weight of evidence, taking into consideration the amount of proof required in a criminal case, then the action of the lower court in rendering judgment upon the same should be reversed.

Under this rule, was the evidence sufficient to show’ the intent? Coles was standing on the corner of Adams and Fifth street when the prosecuting witness came up Adams street and turned down Fifth street southwardly. He immediately followed her and when she got to the gate or close to the gate of her home, about half way down the square, struck her upon the head with a piece of gas pipe, stunning her; but she did not entirely lose consciousness and screamed three times. Coles immediately desisted and ran up an alley immediately opposite the place of assault and out to his own home. The prosecuting witness had a gold watch and chain upon her person, the watch being in her belt, the place where she ordinarily carried it, and where it could be plainly seen-She had gone to her home in the same direction from her work, three or four squares away, for several months previously, two and three times a day. Coles was a resident of the city and had been all his life and lived a few squares from where the prosecuting witness lived. He is a negro about eighteen years of age and she a white girl twenty-four or five years of age. There is no evidence of any grudge; indeed, she did not know Coles. Simon Uoftus was about a square away and heard her scream and immediately ran to her rescue, but did not see Coles in his flight. When he got to her she was leaning over the gate partially unconscious. Nothing was disturbed upon her person.

Were these facts sufficient to justify the jury in rendering a verdict of guilty with intent to rob ? We think they were.

The accused must have had some intent in striking the girl beyond the malicious purpose of injuring her. It is true that, in striking her with the piece of gas pipé, the natural conclusion is that he intended to kill or at least wound her; that intent follows and is presumed from the use of such a weapon. It may be contended that his purpose was to wound her, but it does not follow that he had no other purpose ; or that the wounding of her was not to accomplish the ultimate purpose to rape or rob-There is nothing illogical in holding that both intents were in his mind, the one being necessary to accomplish the other. It is hardly conceivable that he struck her for the purpose of wounding alone.. There was no motive at all for simply wounding her; no ill feeling; no quarrel; nothing of that character. Why, therefore, did he follow her down the street, out of the glare of the electric light and secretly strike her with the weapon? It could only be for the purpose of rape or robbery ; the jury found the latter and we think from the evidence they found correctly.

The next question is a more difficult one. During the examination of the prosecuting witness, while upon the stand in her direct examination, the following took place:

Prosecuting Attorney Eewis: “ State if you could recognize the person who struck you there as he was running away from you.
“A. No sir, I could not.
“ Eewis: Stand up, Coles (speaking to the defendant). Turn your back to the witness.
“ Defendant objects to this.
Court: I think that is all right.
“ Mr. Erskine (Attorney for Coles): We object to that.
‘1 Court: He may remain standing a minute.
“ To this defendant then and there excepts.
“ Witness: The size of that man fills the bill.
“Court: The answer is stricken out.
“ Erskine: We object to the order of the court to have the defendant stand up. Overruled, to which ruling of the court the defendant then and there excepted.
“ 0. Now state to the jury whether the person that you saw running, how he compared, if at all, with the person of the defendant ?
“ Objected to. Sustained.
“ Court: Eet her state her recollection of his size.
“ Q. State as to whether the person you saw was taller or shorter or the sa,me size as the defendant.
“Objected to.' Sustained.
“ Court: Eet her state what kind óf a man he appeared to be.
“ Q. State.
“ A. He was a short man and the size of that man fills the bill.
“ Court: The latter part of the answer is stricken out; the jury-will pay no attention to that remark.”

From these proceedings it will be seen that the accused, over the objection and protest of his counsel, was required by the court to stand up and turn his back to the prosecuting witness in order to assist her in identifying him, if possible, and, by his standing up, she was enabled to state that the man that assaulted her was a short man like the accused.

Was this action of the court a violation of the rights of the accused under Sec. 10 of our bill of rights or the fifth amendment to the constitution of the United States ? The provisions are practically the same. The bill of rights provides : “Nor shall any person be compelled, in any criminal case, to be a witness against himself.”

Nearly every state in the union has similar provisions in their organic law. In some of the states the provision is: “ Such person shall not be compelled to give evidence against himself,” the phraseology being slightly different but of the same legal effect. Note to State v. Ah Chuey, 33 Am. Rep. 530, 540.

The solution of the question is not free from difficulty from the adjudicated cases. The accused was required to stand up and turn his back to the prosecuting witness, in order that she might compare him with the person who fled after striking her. It would seem as if that was requiring him to give evidence against himself; but at the same time he was exercising his right to face his accusers, and, being in court, would be under the control of the court for all fair and reasonable purposes. So far as we have been able to ascertain, there are no reported cases in this state bearing upon this question, either of our Supreme Court or of our lower courts; and in other states the authorities are conflicting.

People v. Mead, 15 N. W. Rep. 95 [50 Mich. 228]; State v. Jacobs, 5 Jones Law R. (N. C.) 259; Blackwell v. State, 67 Ga. 76 [44 Am. Rep. 717]; Stokes v. State, 5 Baxt. [619 30 Am. Rep. 72]; State v. Ah Chuey, 33 Am. Rep. 530, 540; People v. Gardner, 144 N. Y. 119 [38 N. E. Rep. 1003; 43 Am. St. Rep. 741]; Johnson v. Commonwealth, 115 Pa. St. 369 [9 Atl.Rep. 78]; State v. Reasby, 69 N. W. Rep. 451 [100 Ia. 231]; Day v. State, 63 Georgia, 669.

In State v. Jacobs, supra, the court says: “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 deter-termine his status as a free negro.”

In Stokes v. State, supra, it is held : “ On an accusation of murder, it being claimed that certain footprints were those of the prisoner, the prosecuting attorney brought a pan of mud into court and placed it in front of the jury, and having proved that the mud in the pan was about as soft as that where the tracks were found, called on the prisoner to put his foot in the mud in the pan. On objection the court instructed the prisoner that it was optional with him whether he would comply. The prisoner refused, and the court instructed the jury that his refusal was not to be taken against him. The prisoner being convicted, held, he was entitled to a new trial.”

In Blackwell v. State, supra, the court held that: “ On a trial for murder the extent of an amputation of one of the prisoner’s legs being a material question, it is error to compel the prisoner to exhibit his leg to the jury.”

In Day v. State, supra, 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 say: “ By the constitution of this state no person shall be compelled to give testimony 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 the criminal side of the court.”

In People v. Mead, supra, the court held: “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.”

In State v. Ah Chuey, supra, it was held : “ In a criminal case on a question of personal identity a witness testified that the defendant had certain tattoo marks on his person. The court compelled the defendant against his objection to exhibit his person to the jury — Held, no error.” The decision in the case was by a divided court and we think the dissenting opinion of Eeonard, J., is the better reasoning upon the facts of that case.

In State v. Reasby, supra, it was held: “During the trial of a criminal case the defendant’s brother who greatly resémbled him took a seat by his side as a test of identity. At the request of the attorney for the state the judge ordered the defendant to rise for identification against the objection of his attorney. The prosecuting witness then identified the one who stood up as the one who committed the offense charged. Held, that the action of the court in compelling the defendant to rise was not error, as compelling him to criminate himself.”

In People v. Gardner, supra, it was held: “ Upon a trial- of an indictment for an attempt to commit the crime of extortion, a witness called for the purpose of identifying the defendant as the individual in company with the prosecutrix upon an occasion having a material bearing on the case, testified that he did not know him, but would know him if he saw him. Thereupon defendant by direction of the court and against the objection of his counsel was compelled to stand up and was then identified by the witness. Held, that the direction was not error ; that this was not a violation of the constitutional provision protecting a person from being compelled in a criminal case to be a witness against himself under the fifth amendment of the United States constitution and Sec. 6, Art. 1 of the constitution of New York.”

In Johnson v. Commonwealth supra, it was held: “ Whether it would have been error, had timely objection been made and exception taken to the request of the district attorney to the prisoner to stand up and repeat certain words, is not decided, as the question was not properly presented to the court.” Per Sterrett, J.: “ To hold that this was a violation of the clause in Sec. 9 of the declaration of rights, which declares the accused ‘ cannot be compelled to give evidence against himself’ would in my judgment be a strained construction of that instrument.”

From the foregoing authorities it will be observed, as we have said, that there is great disagreement in the courts of final resort in the different states upon the question involved. To attempt to review the reasons given in the different cases for the decisions made would take a great deal of space and throw little additional light upon the question.

We are impressed with the reasoning of the learned judge delivering the opinion in the case of People v. Gardner, supra, and, while there may be some doubt upon the question, we have concluded to follow that case. In the opinion, Earl, J., says : “ It is now claimed on his behalf that this action on the part of the court violated his constitutional rights, by compelling him to be a witness against himself. N. Y. Const., Art. 1 Sec. 6; U. S. Const., amendment 5. We do not think that the defendant’s constitutional right was violated, or that he was compelled, within the constitutional provisions referred to, to give evidence against himself. He was bound to be in court and in the presence of the jury, the recorder and the witnesses who might be there. The recorder, the jurors and the witnesses had the right to see him and he had the right to see them. It was necessary that he should be identified as the person named in the indictment and charged with the crime. * * * There was nothing on his person or in his appearance that in any way connected him with the crime, or furnished any evidence whatever of his guilt. Suppose he ¡had come into the court with his face veiled, could not the recorder ■ compel him to remove the veil that his face might be seen ? Could he not compel him to remove his hat; to stand or sit in the prisoner’s dock ? Inf he examination of the witness could not the district attorney have pointed to the defendant and asked the witness whether he was the person he had seen with Mrs. Amos ? Instead of compelling the defendant to stand up, could not the recorder have directed the witñess to go to the place where he was and look at him with the view of identifying him ? If all these things could be done without violating the rights of the prisoner, how is it possible to say that he was harmed, or that his constitutional right was invaded by compelling him to stand up for the purpose of indentification ? For the orderly conduct of a criminal court it is requisite that the trial judge should have the power to say what place the prisoner shall occupy in the court room, and whether at any time he shall stand or sit, and be covered or uncovered; and he must have the"power at all times to keep the prisoner within sight of the court, the jury the counsel and the witnesses.”

In this caseAhe accused was required to do nothing further than he ordinarily would do in coming into and returning from the court room during the trial, and the prosecuting witness would have had the same opportunity to observe him as she did when he was required to stand up and turn around while she was testifying upon the stand.

This exception will, therefore, be overruled.

We have examined the entire record carefully and find no error.

The judgment will be affirmed and the cause remanded.  