#### STATE v. J. W. HOLLINGSWORTH.

(Filed 21 April, 1926.)

1. Constitutional L)aw — Common Law — Evidence—Letters am} Papers Tending to Incriminate.

Ttie protection afforded to defendants in criminal actions by our Constitution, Art. I, sec. 11, is a matter of absolute right to tbem, and extends to tbe forced production of letters and other papers in their possession that may tend to incriminate them upon the trial.

2. Same — Involuntary Production of Incriminating Evidence — Appeal and Error — Objections and Exceptions.

Where the solicitor in a criminal action, in the presence of the jury at the trial, makes demand upon the prisoner that he produce certain letters and papers relevant thereto, which the prisoner asserts tend to incriminate himself contrary to Article I, sec. 11 of the Constitution, and the trial judge orders their production, and the letters and papers were produced and introduced in evidence on behalf of the prosecution: Held, the production of the letters and papers was compulsory on the plaintiff, and under his exception to the order, constituted reversible error on appeal.

Appeal by defendant from Stack, J., at January Term, 1926, of FORSYTH.

Tbe defendant was convicted of false pretense. 0. S., 4277. Tbe specific charge was tbat “unto Mary R. Craddock and W. G. Craddock be did falsely pretend tbat be represented clients wbo made loans on from two to twenty years terms on approved security and upon payment of tbe sum of $35.00, $15.00 of wbicb bad to be paid in advance, be would procure a loan for tbem or return tbe money tbus advanced, less actual cost of appraisal”; wbereas these representations were false; and by means thereof tbe defendant obtained from Mary R. Craddock and W. G. Craddock $15.00 in money, etc.

Judgment was pronounced upon tbe verdict and tbe defendant appealed, assigning error.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

John D. Slawter and Fred M. Parrish for defendant.

Adams, J.

After reading an advertisement purporting to have been authorized by tbe defendant, Mary R. Craddock wrote him a letter inquiring whether be could procure for her a loan of $1,200 on certain property situated in or near Wentworth. Tbe defendant replied, and thereafter several other letters passed between tbem. Substantially tbe entire negotiation was in writing; besides tbe letters it included two *596applications for tbe loan, tbe first dated 12 December, 1923, and tbe second 28 January, 1924. On tbe day set for tbe trial tbe State seiwed on tbe defendant a notice to produce “all letters and other correspondence between biro, and Mary R. Craddock and W. G. Craddock,” written between specified dates, and while tbe trial was in progress tbe prosecution made a request in tbe presence of tbe jury that tbe defendant produce one of tbe applications signed by Mrs. Craddock. Tbe facts are thus given in tbe record: “Tbe solicitor asked for tbe application for tbe loan referred to in one or more of tbe letters between tbe parties, and tbe defendant insisted that tbe notice to produce did not cover such a paper'. Thereupon, - the court permitted tbe solicitor to give notice then in open court in tbe presence of tbe jury to produce tbe application at tbe reconvening of court at 2:30, to which order tbe defendant excepted. In obedience to tbe order tbe defendant did produce tbe application, and upon objection over defendant’s protest delivered it to tbe solicitor for tbe State, tbe defendant objecting to being required to produce it or any statement in regard to it being made in tbe presence of tbe jury.”

Counsel for defendant: “Your Honor said it was because it was not provided for in tbe notice. Ye object, because in tbe opinion of tbe defendant tbe State is endeavoring to force him to produce evidence upon which to convict himself.” Tbe counsel also said, “Your Honor made an order that tbe defendant produce tbe application, which we do produce, and again object to being forced to produce it.”

Tbe same objection was interposed to tbe production of certain letters which were in tbe defendant’s possession. To tbe order requiring tbe defendant to produce tbe application and tbe letters be duly objected and excepted. Tbe letters and tbe application were then introduced in evidence by tbe State.

Tbe Constitution provides: “In all criminal prosecutions every man has tbe right to be informed of tbe accusation against him and to confront tbe accusez’s and witnesses with other testimony, and to have counsel for bis defense, and not be compelled to give evidence against himself or to pay costs, jail fees, or necessary witness fees of tbe defense, unless found guilty.” Art. I, see. 11.

Tbe object of tbe clause, “and not be compelled to give evidence against himself,” is to secure a person who is or may be accused of a criminal offense against tbe compulsory disclosure of any fact or circumstance that could be used upon tbe trial as evidence tending to show bis guilt. La Fontaine v. Southern Underwriters, 83 N. C., 133. This immunity extends, not only to one who actually testifies as a witness, but to tbe defendant in tbe trial, even though be decline to testify as a witness in bis own behalf. It is intended to shield a person against the *597involuntary production of bis private papers in response to process or an order addressed to him as a witness and against tbe involuntary production of documentary evidence, wbicb might be used as incriminating evidence. S. v. Pence, 25 L. R. A. (N. S.), 818 and note. If tbe proposed evidence is procured by sucb compulsion as is inconsistent witb tbe exercise of volition it falls witbin tbe privilege and should not be admitted. S. v. Turner, 136 A. S. R. (Okla.), 129 and note. Very pertinent is tbe language used in Gillespie v. State, 35 L. R. A. (N. S.) (Okla.), 1171: “Section 21 of Art. II of tbe Constitution of this State provides that no one shall be compelled to give evidence wbicb would tend to incriminate him. This is not merely a formal technical rule, wbicb may be enforced or dispensed witb at tbe discretion of tbe courts. It is a mandatory, constitutional provision, securing to every defendant a valuable and substantial right. If a county attorney can, in tbe presence of tbe jury, demand of tbe defendant, or bis counsel, tbe production of any letters or papers wbicb may be proven to be in tbe possession of tbe defendant, of what value is this constitutional provision? It is true that making a demand upon a defendant to produce sucb letters or papers is a different thing from forcing him to produce them; but the effect is tbe same, because if a defendant refuses to comply witb sucb a demand it is equivalent to admitting that tbe evidence demanded would incriminate him, if it were produced. Tbe observation and experience of all practicing attorneys will sustain tbe statement that sucb an inference is more damaging to a defendant than a proven fact would be. When sucb a demand is made, a defendant must accept tbe alternative of either producing tbe letters, and thereby incriminate himself, or of having tbe jury place tbe strongest possible construction against him upon bis failure to do so. If this can be done, the very life, body, and soul of tbe Constitution would be violated and trampled upon.”

Tbe same conclusion was announced as to tbe Fifth Amendment to tbe Federal Constitution in McKnight v. U. S., 115 Fed., 972: “A perusal of tbe decisions of tbe Supreme Court shows that no constitutional right has been tbe subject of more jealous care than that wbicb protects one accused of crime from being compelled to give testimony against himself. Tbe right to sucb protection existed at tbe common law, and was carried into tbe Constitution, that tbe citizen might be forever protected from inquisitorial proceedings compelling him to bear testimony against himself of acts wbicb might subject him to punishment. In tbe present case the accused, in tbe presence of tbe jury, was, by direction of tbe court, called upon to produce tbe document wbicb it was alleged contained tbe corrupt agreement wbicb was tbe basis of tbe note given by irresponsible persons for tbe funds of tbe bank by McKnight’s direction. Tbe production of sucb a paper would have been *598self-criminating to the defendant in the highest degree. It is true, the learned judge made no order requiring its production; but the accused, by the demand made upon him before the jury, after proof tending to show his possession of the document, was required either to produce it, deny or explain his want of possession of the writing, or by his very silence permit inferences to be drawn against him quite as prejudicial as positive testimony Avould be. Nor were the jury advised that the nonproduction of the writing afforded no ground for an inference of guilt. We think this procedure was an infraction of the constitutional rights of the accused, within the meaning of the Fifth Amendment to the Constitution.”

Our own decisions are in accord with this principle. In S. v. Jacobs, 50 N. C., 259, it is said, “Nothing is better settled than that a defendant in a criminal charge cannot be compelled to produce a'private paper which would be evidence against him on the trial. Rex v. Worsenham, 1 Ld. Raym. Rep., 705; Rex v. Mead, 2 Ld. Raym. Rep., 927; Rex v. Shelly, 3 Term R., 142. Courts of law would not compel a party to produce a deed or other private paper, even in a civil case, where it was intended to be used as evidence against him; Huldane v. Harvey, 4 Burr. Rep., 2489. So strong was this rule, and so much did it interfere with the ascertainment of the truth in trials at law, that our Legislature, in the year 1821, passed an act empowering the courts of law to require the parties under, certain circumstances, to produce books and papers in their possession, or power, which might contain evidence pertinent to the issue on the trial (see Rev. Code, ch. 31, sec. 82). This act does not extend to criminal prosecutions, and as to them, therefore, the law remains as it was before.” It is not difficult to distinguish between the case just cited and S. v. Johnson, 67 N. C., 55; S. v. Woodruff, ibid., 89; S. v. Garrett, 71 N. C., 85; S. v. Graham, 74 N. C., 646.

The State gave notice to the defendant to produce the papers therein described. In the brief for the State it is suggested that as the notice involved no compulsion the defendant should have refused to produce the papers on the ground that they would incriminate him; also that a mere objection to the evidence was not sufficient to raise the constitutional issue. S. v. Mitchell, 119 N. C., 784; S. v. Morgan, 133 N. C., 743; Ivey v. Cotton Mills, 143 N. C., 189. The defendant did object for the reason that the evidence would incriminate him. But he had the papers in his possession and his refusal to respect the order of the' court would have invited the usual consequences of wilful disobedience. The circumstances exclude the idea of volition; on the contrary the order to produce the papers imported compulsion. He did all he could have done: he “protested” against being compelled to produce the papers *599because of tbeir incriminating character and excepted to tbe order compelling tbeir production.

Tbe reason for requiring notice is to enable tbe defendant to produce tbe document if be desires to do so, or if it be lost to bave witnesses to meet sucb proof of its contents as may be offered by tbe adverse party. Whenever it becomes necessary in a criminal action to serve notice on tbe defendant to produce at tbe trial any paper, book or document in bis possession to be used as evidence against him, be should be given an opportunity in tbe absence of tbe jury to bring it forward or to decline to do so; and if be refuse to produce it for tbe reason that it might tend to convict him, secondary evidence may then be offered. Nalley v. State, 74 S. E. (Ga.), 567; Sellers v. State, 78 S. E. (Ga.), 196; Thomas v. State, 91 S. E. (Ga.), 247; Skidmore v. State, 26 L. R. A. (N. S.) (Tex.), 466; Knights v. State, 76 A. S. R. (Neb.), 78.

Tbe defendant is entitled to a

New trial.