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Lowe. effect will be given by the courts to such intention. R. 16 6 Davis v. Doig. Nudd. 1030.) 143. These provisions are held to prohibit forcing the 12 York.13 In England. 2 Watts (Pa.15 And it never becomes personalty. 74 S.) 11. 442. supra. and its affairs completely wound up. Cooper. Russell. the character and extent of the realty involved. 18 Lowe v. Rosenbaum v. Brown. 188 N.2 This doctrine. 58 Minn.3 and of the constitutions of nearly all of the States. Christian.12 Since by the American rule such lands are considered as personalty only for partnership purposes. but for all purposes. Fooks v. even during the continuance of the firm. 109 N. 775. and the partners' mode of treating and considering it. Self. 13 Lenow v. Y. 71 Iowa 63. it is of course at no time subject to dower. 48 Ark. not only for partnership. Reprint 674. and 5th. v. Amendments. REv." was made a part of the United States Constitution. 71. 340. A.17 The partners are thus allowed to extend by agreement the doctrine of conversion as far as is allowed by the English doctrine. 236. 20 Beav. 138. 1 Entick v. 297. 238. yet if it can be clearly shown that it was the partners' intention to regard it as personalty. and the partnership realty is considered as personalty even after the settlement of partnership affairs. Essex. C. (13 Bush) 688. L. Carrington. 60 Am. 776.16 While in America. City of New Mallory v. . 2 a 65 Mo. as soon as the affairs of the partnership are settled. Buckley v. 79 Ky. Rep.70 VIRGINIA LAW REVIEW attach until the partnership is terminated. Supp. Henrie. in the absence of agreement to the contrary. But see Hale v. Wilson. together with the prohibition of "unreasonable searches. 17 Holmes v. Butts v. supra. Rep. (Va. 14 Essex v.18 IN CRIMINAL ADMISSIBILITY CASES OFEVIDENCE OBILLEGALLY TAINED--The doctrine that an accused person cannot be compelled to testify against himself was early incorporated into the common law of England. 19 How. 557. Williams. 5 HARV. 13 Gratt.l probably because of the revolt against the barbarous trials of thumb-screw days. 76 Ky. however. the widow is entitled to dower in the surplus.14 The conveyance of real estate is an act so closely pertaining to the inherent nature of the land itself that it is unaffected by this doctrine of conversion. where the conversion is out and out. Tr. including the nature of the partnership business. partnership realty is converted into personalty only pro tanto for the purpose of partnership equities. 289: Agreement must be by deed or writing placed on record. Fones. St. 265. Wilson v. And such agreement may be implied upon consideration of all the facts. 30. 27 Am. Y. 27 L. so as to give one partner power to dispose of the firm's legal interest in it. and the same formalities are required for the conveyance of partnership real estate as of that of an individual. Dec. Willet v. Woodward-Holmes Co. 27 Am. 52 Eng. 4th.
7 seems to have originated in obiter expressions in the case of Boyd v. 73 Vt. affidavits. Blum v. was not required to incriminate himself by any affirmative act. affords an example of the liberal interpretation of this provision. speaking obiter. United States. "s Lum Yan v. United States. The testimony as to the discovery of the whiskey was held to be inadmissible. 51 Atl.'3 and pointing out the fact that the accused. State. however. 78 S. and the doctrine extended to the exclusion of evidence illegally obtained. United States. S. United States. . without a warrant. and other subjects of evidence tending to incriminate him.8 The recent case of Underwood v. 117 Ia. United States'? the court held unconstitutional a revenue act which authorized a federal court to compel a defendant to produce private invoices. clearly forced the accused to testify against himself in contravention of the Fifth Amendment to the Constitution. Underwood v. 4 WIGMORE ON EVIDENCE. 94 Md. S. State. and found in it several pints of whiskey. 616. discussed the doctrine of evidence obtained by illegal seizures. 650. 81 Fed. 50 Atl. In that case. 616. 616. requiring the accused. 935." In the case of Boyd v. W. 472. because of the provision of the State constitution that "no person shall be compelled to give testimony tending in any manner to incriminate himself.). unlocked the safe in his office. was not error. State v. " 4 WIGMORE ON EVIDENCE. 585. to furnish evidence incriminating himself. State v. New York. 4 WIGMORE ON EVIDENCE. This act. after accused had been arrested on the charge of violating the Penal Code of Georgia9 by keeping intoxicants on hand at his place of business.4 The question as to how far this doctrine should be extended. infra. Underwood v.5 Some of the courts hold that this constitutional provision should be liberally interpreted in favor of the accused. 3125. 212. (1910). held by the minority. It was also Boyd v. 970. State (Ga. in the later case. and seemed to imply that any evidence illegally obtained would be inadmissible.EDITORIAL NOTES 71 accused to produce letters.6 This view. officers forcibly took his keys from his pockets and. Slamon. S. the court. documents. 91 N. 193 Fed. et seq. in revenue cases. ? 2264. ? 2264. is one on which there is a great difference of opinion among the authorities. 12 192 U. in the case of Adams v. infra. but in delivering the opinion. Height. State. the same court. 26. 116 U. by an affirmative act. McChesncy. E. letters. 1103. on pain of having the allegations of the prosecuting attorney taken as confessed. 116 U."1 Later. 1097. ? 426.12 held that the admission of papers illegally obtained from the possession of the accused. 9 Georgia Code 10 116 U. and that therefore the Fifth Amendment to the Constitution was not violated. distinguishing this 'case from the case of Boyd v. or papers. Hoover v. S. as evidence against him. 375.
is proper. 413. Cooper v. There is. Strubble.18 It has been held that evidence obtained by a physical examination of the accused. Adams. may be introduced as evidence against him. as was held in Adams v. 654. State. W.19 Where the defendant submits to the examination without objection. the fact that it was illegally obtained is not a valid objection to its admissibility. ? 254a.17 as this is forcing the accused to furnish evidence against himself by an affirmative act. State v. Van Wormer. Height. 67 Ga. 351. See 13 HARV. . the courts have held that forcing an accused person to surrender his shoes. State (Tex. Rep. 23 State v. 138 Ill. Ed. 32 Am. as evidence of its condition. State. 71 Ia. it is well settled that evidence so obtained is admissible. 176 N. State v. 76. The decided majority of the courts hold. see note. 2 Drake v. 159 Mo. Commonwealthv. 595. E. 402. if the accused is not required to perform any affirmative act.72 7VIRGINIA LAW REVIEW held that this was no violation of the constitutional privilege from unlawful search or seizure as prohibited by the Fourth Amendment. New York. GREEN. authority to the contrary. 32 N. 76 Cal. 27 N. 1085. 103. (Redf. 1. over his objection. Goldenson. E. supra. 110.l4 that if the evidence is pertinent to the issue. 25 26 Adams v.24 The true rule seems to be that the court will not reject evidence because obtained illegally. 16 People v.).25 The decisions. Ev. REv. 82 Kan. or to place his foot in a track near the scene of the crime. Rep. Tibbetts. People v. 157 Mass. 25 N. 188. United States. Rep.16 On the contrary. Hartman v.23 Clothing or other articles taken from the accused on his arrest.15 Adopting the doctrine that evidence illegally obtained is not for that reason inadmissible. 21 O'Brien v. 33 Am. however. 33 Am. 2 Blackwell v.L. 11. For a criticism of this case. REv. 328. where the accused is forced to make a footprint. 12 Cyc. v. E. 354. 161. is admissible. 530.21 but it is error for the court to compel the accused to exhibit to the jury a portion of his body not ordinarily visible. supra. 79. 302. 67 N. however. 75 Ga. 638. W. Contra. 125 Ind. 6 So. 86 Ala. State. since this is compelling him to incriminate himself by an affirmative act. 175 N.20 Requiring a prisoner to stand up before a jury for identification does not compel him to give evidence against himself. Tettaton. Y. if the accused was not forced to perform an affirmative act in the production of the evidence. 610. and any attempt to reconcile them would be futile. are in hopeless conflict. 14 Nev. Ah Chuey. for the purpose of comparing them with tracks near the scene of the crime. 19 Pac. State. Y. 299. 38. it is rightfully held that evidence of this fact is inadmissible. 168 Fed.). People. 540. Walker 1S 19 15 1 14Supra. 787. E. 743. State v. People v.26 Gindrat v. 60. 137. 4 COL. 109 Pac. 60 S.22 But here also there is much authority contra. 519. 30. Turner. o2State v. 68 N. New York. L.
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