gait the court can compel the prisoner to get up and walk, or that on a question of voice they can compel him to speak? It is impossible to distinguish the Stokes case. If the court had considered the evidence competent, it would have compelled the pris oner to " make tracks," or instructed the jury that his refusal might be considered against him. The court said: "In the presence of the jury the prisoner is asked to make evi dence against himself." That is exactly what he was asked in the tattoo case, and what he was compelled to do in the Graham case. It is immaterial whether he is compelled to do it out of court or in court. The distinc tion drawn by the court in the Walker case against the Stokes case would apply just as well to the Graham case. Neither Wharton nor Bishop expresses any opinion on this question; but it seems to me that on prin ciple a prisoner cannot be compelled to say anything, nor do anything, nor submit to any act addressed to his actual person, which may tend to criminate him. I agree with the dissenters in the Ah Chuey case when they say : " My conclusion is that under both the Constitution and the common law, it was error to compel the defendant, at the trial, to make a disclosure, which with the testi mony of witnesses, tended to prove him to be Ah Chuey, and indirectly to establish his guilt. I think the error is as great as it would have been had the court compelled the defendant to admit that he was Ah Chuey. It accomplished the same result. In criminal cases the State must prove guilt without the aid of the accused at the trial, unless the guaranteed rights are waived, when a waiver is permissible." But having voluntarily exhibited a scar on his head to the jury, he may afterwards be compelled to show it to a physician to enable him to testify whether it is old or recent. Gordon v. State, 68 Ga. 814. In Bastardy Cases. Whether the child may be exhibited in bastardy proceedings to en able the jury to determine its paternity from its resemblance to the putative father, is
a mooted question. The exhibition of a child two years old was allowed in State v. Smith, 54 Iowa, 104; but in State v. Danforth, 48 Iowa, 43; s. c. 30 Am. Rep. 387, it was held error for one three months old to be exhibited. The court in the latter case said that all extremely young babies look substantially alike. (In a " note by the printer," in 1 Thompson on Trials, § 856, it is said: "The judge who made this ruling must have been an old bachelor.") The resemblance was deemed competent in Gaunt v. State, 50 N. J. 490. The court said : — "In cases involving handwriting, for instance, it has always been deemed pertinent to have a comparison of hands. Likewise in sales by sample in patent cases, in trade-mark and infringement suits, resemblance is of the essence of the proof. Nor can it be said that the tendency of recent applications of this rule has been toward restric tion, — rather the reverse. In the courts of a sister State, New York, operas have been per formed in court, and comic songs sung, plagiarized papers have been read, and the so-called materi alization of spirits exhibited, — all within the scope of the doctrine of the relevancy of resemblance; while in a case now pending in the courts of Pennsylvania a board of experts have been or dered to inspect a certain contrivance called the ' Keeley Motor,' with a view to the determination of its resemblance or mechanical equivalency to a motor described in plaintiff's partnership bill. Examples of the application of the same rule to family likeness are not wanting. In the notorious Douglas case, House of Lords, 1769, Lord Mans field allowed the resemblance of the appellant and his brother to Sir John Stewart and Lady Jane Douglas to be shown, as well as their dissimilarity to those persons whose children they were sup posed to be; while as late as 1871 Lord ChiefJustice Cockburn, in the Tichborne case, held that the resemblance of the claimant to a family daguerreotype of Roger Tichborne was relevant, and intimated that comparison of features be tween the claimant and the sisters of Arthur Orton would be permitted. The extension of this rule to cases of family likeness in bastardv and other suits of alleged parentage cannot be questioned seriously on principle; the illusory
