In Re Vickers

123 N.W.2d 253, 371 Mich. 114

• Court: Michigan Supreme Court
• Decided: September 4, 1963
• Docket: Calendar 38, Docket 49,301
• Status: Published

Opinions

Dethmers, J.

This is an appeal from a circuit court order dismissing the writ of habeas corpus issued to inquire into the legality of petitioner’s commitment to county jail by a justice of the peace for contempt for refusal to answer certain questions put to her as a people’s witness at a preliminary examination in a criminal case in which Dr. Emery J. Gilbert and others, not including petitioner, were charged with conspiracy to commit the crime of abortion on pregnant women.

The questions put to petitioner were as follows:

“Q. Did you ever go to his office?”

“Q. Miss Vickers, did you ever go to Dr. Gilbert’s office for the purpose of professional services, from Dr. Gilbert?”

“Q. Now witness, isn’t it a fact that you went to Dr. Gilbert’s office for the purpose of consulting with him about obtaining an abortion on yourself?”

“Q. Didn’t Dr. Gilbert perform an abortion on you?”

She refused to answer on the ground that “it might incriminate me”. For such refusal the justice of the peace found her guilty of contempt of court, committed in open court in the presence of the judge thereof, and ordered her confined in the county jail until she shall purge herself of such contempt by answering said questions.

If answers to the questions might tend to incriminate petitioner, she could not lawfully be required to answer under Michigan Constitution of 1908, art 2, § 16, which provides “no person shall be compelled in any criminal case to be a witness against himself.” Even though an answer to a question 1 way would not incriminate, if the opposite answer might, the constitutional privilege excuses the witness from making any answer thereto. In re Allison, 156 Mich 34, and cases cited therein. If an answer either way to the questions would not incriminate her, she may be compelled to answer. Of that the court, not the witness, is the judge. In re Moser, 138 Mich 302 (5 Ann Cas 31); In re Mark, 146 Mich 714; People, ex rel. Moll, v. Danziger, 238 Mich 39 (52 ALR 136); 1 Burr’s Trial 244.

Abortion involves concert of action between 2 persons, the perpetrator and the victim, the immediate effect of consummation reaching only the participants, as also in respect to adultery, bigamy, incest, or dueling, in which a charge of conspiracy to commit the offense will not lie against the 2 participants. This is because the conspiracy to commit them is in such close connection with the objective offense as to be inseparable from them. Curtis v. United States (CCA 10), 67 F2d 943; Lisansky v. United States (CCA 4), 31 F2d 846 (67 ALR 67). See, also: United States v. Katz, 271 US 354 (46 S Ct 513; 70 L ed 986); Gebardi v. United States, 287 US 112 (53 S Ct 35; 77 L ed 206, 84 ALR 370). Hence, petitioner’s answers would not incriminate her of conspiracy to commit abortion.

Could she be charged with abortion? CL 1948, § 750.14 (Stat Ann § 28.204), declares one guilty of a felony who, under certain circumstances, performs an abortion upon a woman. It does not provide that the woman herself shall be guilty of an offense. ' At common law she was not. guilty of a crime even though she performed the aborting act upon herself or assisted or assented thereto. State v. Carey, 76 Conn 342 (56 A 632). The majority view is that not only may she not be held for abortion upon herself but neither as an accomplice. See annotations at 139 ALR 993 et seq.

CL 1948, § 767.39 (Stat Ann § 28.979), provides that one who procures, counsels, aids, or abets the commission of an offense may be tried, convicted, and punished as if he had directly committed the offense. In People v. Meisner, 178 Mich 115, this Court said:

“Where an offense can be committed only by a specified class, aiders and abettors cannot be charged as principals if they are outside the statute designation.”

Inasmuch, then, as petitioner cannot be held for commission of the crime of abortion upon herself, she may not be held as an aider or abettor thereof.

It is suggested in petitioner’s brief that answers by petitioner to the stated questions might tend to incriminate her of adultery, lewd and lascivious cohabitation, disorderly conduct, violation of the Federal white slave act or other offenses. How this could be is not spelled out. In the case of In re Schnitzer, 295 Mich 736, 740, 741, this Court said:

“The Constitution does not permit the witness To arbitrarily hide behind a fancied or intangible danger’ (In re Moser, supra). The tendency to incriminate must be a reasonable one; an answer may not be withheld because it might possibly under some conceivable circumstances form part of a crime. 8 Wigmore on Evidence (3d ed), p 354, § 2260. * * *

In Ex parte Irvine (SD Ohio), 74 F 954, 960, Judge Taft wrote:

“ ‘It is impossible to conceive of a question which might not elicit a fact useful as a link in proving-some supposable crime against a witness. The mere statement of his name or of his place of residence might identify him as a felon, but it is not enough that the answer to the question may furnish evidence out of the witness’ mouth of a fact which, upon some imaginary hypothesis, would be the 1 link wanting in the chain of proof against him of a crime. It must appear to the court, from the character of the question, and the other facts adduced in the case, that there is some tangible and substantial probability that the answer of the witness may help to convict him of a crime.’ ”

We hold that the answers would not tend to incriminate her of those or any other conceivable offenses.

Affirmed.

Carr, C. J., and Kelly, Black, Kavanagh, Smith, and O’Hara, JJ., concurred with Dethmers, J.