dissenting.
While the court’s opinion is in accord with the principles of federal constitutional law enunciated by a majority of the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), I am persuaded by the compelling reasoning of the four dissenters to those opinions. In the present factual situation I would extend to accused persons greater rights under the Wyoming Constitution than those apparently afforded by the judicially diluted Bill of Rights of the United States Constitution.
June Brunmeier was compelled, for the State’s case, not her own defense, to give handwriting exemplars so as to simulate the checks she was charged with forging. In short, this defendant was required to reenact the crime with which she was charged, and the State introduced the resulting evidence against her at trial.
Logic and justice should determine that the compulsory handwriting exemplar violated appellant’s privilege against self-in*268crimination guaranteed by Art. 1, § 11 of the Wyoming Constitution. The reasoning found in the dissenting opinions to the federal precedent relied on by this court is compelling, and I believe justifies a broader interpretation of this privilege than the federal courts have given it.
In Sehmerber the petitioner was compelled, against his will, to allow a doctor to extract a blood sample for alcohol analysis, the results of which were then used as evidence to convict the petitioner of a crime. The Sehmerber court held, 5 votes to 4, that the compulsory blood-letting did not violate the Fifth Amendment prohibition against compelling a person to be a witness against himself because the blood extraction was neither communicative nor testimonial, but rather a source of real or physical evidence.
Justice Black’s response in his dissent, compelling in reasoning to me, stated:
“ * * * To reach the conclusion that compelling a person to give his blood to help the State convict him is not equivalent to compelling him to be a witness against himself strikes me as quite an extraordinary feat.
* * * * * *
“In the first place it seems to me that the compulsory extraction of petitioner’s blood for analysis so that the person who analyzed it could give evidence to convict him had both a ‘testimonial’ and a ‘communicative nature.’ The sole purpose of this project which proved to be successful was to obtain ‘testimony’ from some person to prove that petitioner had alcohol in his blood at the time he was arrested. And the purpose of the project was certainly ‘communicative’ in that the analysis of the blood was to supply information to enable a witness to communicate to the court and jury that petitioner was more or less drunk.” 384 U.S. at 773, 86 S.Ct. at 1837.
■ Later, in his partial dissent to Gilbert v. California, supra, 388 U.S. at 278, 87 S.Ct. at 1963, Justice Black stated:
“ * * * Compelling a suspect or an accused to be ‘the source of “real or physical evidence” * * *,’ so says Schmerber, 384 U.S. at 764, [86 S.Ct. at 1832], is not compelling him to be a witness against himself. Such an artificial distinction between things that are in reality the same is in my judgment wholly out of line with the liberal construction which should always be given to the Bill of Rights. See Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746].”
In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the court announced a rule of constitutional interpretation followed particularly in judicial construction of Bill of Rights guarantees:
“ * * * It is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon.” 116 U.S. at 635, 6 S.Ct. at 535.
In United States v. Wade, supra, the defendant was compelled to stand in a lineup and utter the words purportedly uttered by the robber. The United States Supreme Court held, again 5 votes to 4, that the defendant was not compelled to utter statements testimonial in nature, but was only required to use his voice as an identifying physical characteristic.
In his partial dissent, Justice Black reasoned:
“ * * * Had Wade been compelled to utter these or any other words in open court, it is plain that he would have been entitled to a new trial because of having been compelled to be a witness against himself. Being forced by the Government to help convict himself and to supply evidence against himself by talking outside the courtroom is equally violative of his constitutional right not to be compelled to be a witness against himself.” 388 U.S. at 245, 87 S.Ct. at 1942.
Justice Fortas’ opinion, concurring in part and dissenting in part, joined by Chief Justice Warren and Justice Douglas, stated:
“It is the kind of volitional act — the kind of forced cooperation by the accused— which is within the historical perimeter *269of the privilege against compelled self-incrimination.
******
“ * * * To compel him to speak would violate the privilege against self-incrimination, which is incorporated in the Fifth Amendment.
“This great privilege is not merely a shield for the accused. It is also a prescription of technique designed to guide the State’s investigation. History teaches us that self-accusation is an unreliable instrument of detection, apt to inculpate the innocent-but-weak and to enable the guilty to escape. But this is not the end of the story. The privilege historically goes to the roots of democratic and religious principle. It prevents the debasement of the citizen which would result from compelling him to ‘accuse’ himself before the power of the state. The roots of the privilege are deeper than the rack and the screw used to extort confessions. They go to the nature of a free man and to his relationship to the state.” 388 U.S. at 260-261, 87 S.Ct. at 1949-1950.
In Gilbert v. California, supra, the State obtained handwriting exemplars which were admitted in evidence at trial over objection that they were obtained in violation of petitioner’s Fifth Amendment right against self-incrimination. The court rejected petitioner’s argument, and held that
“ * * * [ojne’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, at 222-223 [87 S.Ct. at 1929-1930]. No claim is made that the content of the exemplars was testimonial or communicative matter.” 388 U.S. at 266-267, 87 S.Ct. at 1953.
Again four Justices dissented to this section of the court’s holding. In his partial concurrence and partial dissent, with which Chief Justice Warren joined, Justice Fortas observed:
“The Court today appears to hold that an accused may be compelled to give a handwriting exemplar. Cf. Schmerber v. California, 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908] (1966). Presumably, he may be punished if he adamantly refuses. Unlike blood, handwriting cannot be extracted by a doctor from an accused’s veins while the accused is subjected to physical restraint, which Schmerber permits. So presumably, on the basis of the Court’s decision, trial courts may hold an accused in contempt and keep him in jail — indefinitely—until he gives a handwriting exemplar.
“This decision goes beyond Schmerber. Here the accused * * * is compelled to cooperate, not merely to submit; to engage in a volitional act, not merely to suffer the inevitable consequences of arrest and state custody; to take affirmative action which may not merely identify him, but tie him directly to the crime. I dissented in Schmerber. For reasons stated in my separate opinion in United States v. Wade, supra, I regard the extension of Schmerber as impermissible.” 388 U.S. at 291-292, 87 S.Ct. at 1965-1966.
I agree with those able and thoughtful writers in dissent, that the Fifth Amendment proscription against self-incrimination should also apply to compulsory handwriting exemplars. It is unsound in language and logic to characterize such a handwriting requirement as mere physical evidence, particularly where the accused is compelled, as in this case, to reenact the crime. Compelling such a reenactment clearly violates the constitutional guarantee that one need not testify against himself.
The holding in Gilbert v. California, supra, cited by this court reveals the absurdity of the Gilbert court’s reasoning. That court said:
“ * * * A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an *270identifying physical characteristic outside [Fifth Amendment] protection.” (Emphasis added.) 388 U.S. at 266-267, 87 S.Ct. at 1953.
Does this mean that a defendant may not be compelled to write “I forged the check,” but may be compelled to forge a blank check — to actually do the act for which he is being prosecuted? If that is the incongruous holding in Gilbert, I see no reason to join in the artless reasoning leading to such a result. In both cases, the defendant is compelled to witness against himself, “to accuse himself by a volitional act.” United States v. Wade, supra, 388 U.S. at 261, 87 S.Ct. at 1950, Fortas, J., concurring in part and dissenting in part.
This court suggests that the distinction between the language contained in the federal constitutional provision and the Wyoming Constitution is meaningful, in adversity to the criminally accused. I respectfully disagree. Whether the proscription is against the compulsion “to be a witness against himself,” as stated in the federal constitution, or “to testify against himself,” as stated in the Wyoming Constitution, under the language of either provision, a compulsory reenactment of the crime is prohibited. To force a defendant to simulate the forging of a check is to compel him to testify against himself. Any attempt to hold otherwise is, in my opinion, a misadventurous perpetuation of the “artificial distinction between things that are in reality the same.” Gilbert v. California, supra, 388 U.S. at 278, 87 S.Ct. at 1963, Black, J., concurring in part and dissenting in part. My reading of the annals of the Wyoming Constitutional Convention provides no demonstration of a diminished interest in individual rights and guarantees in what was then the raw frontier of an individualistic society.
Where, by the slimmest of majorities, the United States Supreme Court has failed to breathe life into the spirit of the Fifth Amendment prohibition against self-incrimination, this court should now awaken that spirit and give life to the similar prohibition in the Wyoming Constitution. Today, by acquiescing in the artificial distinction between physical evidence and testimonial communicative evidence, we, as justices of this court who are designated guardians of the Wyoming Constitution, pass up an opportunity to champion the fundamental right not to testify against himself assured every citizen by the basic principles of our democratic society and the Anglo-Saxon constitutional foundation of our judicial heritage.
I dissent.