The conviction should be set aside and a new trial ordered.
The court was in error in permitting Dr. Hubbard to testify to the statement made to him by the little girl, when brought to his office by her mother, several days after the alleged offense. Such repetition of the accusation, previously made to the mother, was improper and should not have been permitted to serve as corroborative of the statements made by the girl in court. That such purpose was permitted appears from the following instruction to the jury:
"The testimony that Dr. Hubbard gave here likewise is merely corroborative. The testimony of both of those witnesses is corroborative in two respects, if true, and particularly as far as it tends to corroborate the story the girl told upon the stand, as to the truth of her claim."
If such be declared the rule then a child may, by statements to many persons, be corroborated in court by each merely telling in court what the child said to them out of court. No such rule prevails.
The fact that a child of tender years complains of sexual abuse may be shown, but repetitions of the complaint are wholly inadmissible. The first complaint by the girl was made to her mother. The offense was alleged to have been committed on August 10th, complaint to the mother was not made until several days later and, therefore, was too remote to be a part of theres gestæ. People v. Tobin, 230 Mich. 214. There was no claim of coercion or threats operating to delay complaint and the holding
in People v. Gage, 62 Mich. 271 (4 Am. St. Rep. 854), does not apply. Because of the unexcused delay in making complaint even the mother could not, in corroboration of the child, or for any other purpose, detail the statement made by the child with reference to the alleged offense. People v. Hicks, 98 Mich. 86;People v. Place, 226 Mich. 212; People v. Tobin,supra.
The court was also in error in receiving the testimony of the physician who examined defendant at the jail and in submitting such testimony to the jury. The circumstances surrounding such examination were in dispute and the result of the examination was not admissible unless defendant voluntarily submitted his person to examination. The jury should not have been permitted to consider the result of the examination unless it was found by the jury to have been a voluntary submission by defendant. Defendant was not permitted to explain why he submitted. The court instructed the jury:
"Now, the local doctor, Dr. Lilly, has testified about that examination and to the extent that he found the disease to exist in the respondent. His testimony would be corroborative to an extent, if true, of the testimony of the girl.
"It can be used for that purpose only and for no other. Some criticism has been based upon the means and methods by which this examination was had. That is not for your consideration at all. That is a matter to be passed upon by the court and it was passed upon by the court. The testimony was admitted. It is for your consideration and you have no right to reject it unless you find it to be false."
All authority holds that an accused may not becompelled to submit to such an examination as was
had in this case. This is because Art. 2, § 16, of the Constitution of this State provides:
"No person shall be compelled in any criminal case to be a witness against himself." * * *
An accused may, of course, consent and furnish evidence against himself but, unless he consents, the examination of his person cannot be made. Consent cannot be predicated upon failure to protest or resist. Ignorance of right to resist, fear under the distress of arrest and confinement, may lead a prisoner to be passive, or even to comply with a request to exhibit his person to medical examination, without loss of the protective provision in the Constitution. It was not enough to show that defendant was a docile prisoner and failed to protest or resist. To constitute the result of the examination lawful evidence it was necessary to show that he voluntarily exposed his person, or, at least, was willing to be examined. No court in this State would assume power to order such an examination. It was ordered by a magistrate in England and the magistrate and doctor were later cast in damages for an assault. We quote the syllabus:
"A magistrate has no right to order an examination of the person of a prisoner. An examination by medical men, in pursuance of such an order, of the person of a female, in custody upon the charge of concealing the birth of her illegitimate child constitutes an assault." Agnew v. Jobson, 13 Cox's Cr. Cas. 625.
That was a holding at circuit but well states the common law. See Union Pacific R. Co. v. Botsford, 141 U.S. 250
(11 Sup. Ct. 1000).
In the case at bar a mere ministerial officer called in a physician and assumed to exercise a power no
court could extend to him, and, because the prisoner submitted without protest or resistance, it seems to be thought that he volunteered to disclose evidence against himself. If an examination of an accused extends to his private parts the result thereof cannot be received in evidence unless it affirmatively appears that he consented thereto.
In Union Pacific R. Co. v. Botsford, supra, we find this:
"As well said by Judge Cooley, 'The right to one's person may be said to be a right of complete immunity: to be let alone.' Cooley on Torts, 29."
Defendant was not let alone but brought from his cell by his jailer to be subjected to medical examination in an effort to discover evidence tending to establish his guilt. Defendant was about to be released on bail and it was evidently considered that if the examination was had it would have to be made while he was in custody.
Our attention is directed to the holding in People v. Glover,71 Mich. 303, as authority for the examination. The protection of an accused against being required to furnish evidence against himself was not presented in the Glover Case or there considered. The court merely held that the relation of physician and patient did not obtain, and, therefore, the testimony of the physician did not fall within the rule of a privileged communication. This is made plain by the opinion. The brief in behalf of defendant in the Glover Case urged that the physicians who made the examination "became his physicians, and the relation of physician and patient became established," and "the result of that examination was privileged." Duress was also claimed. The Glover Case is not authority upon the question before us.
It cannot be said, under defendant's testimony, that he voluntarily submitted to an examination of his person. At most he involuntarily submitted. Submission alone establishes no waiver. Voluntary submission may, but involuntary submission, never. Defendant was not permitted to tell why he submitted. He should have been allowed to do so even though contradicted by his action and words.
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The conviction should be set aside and a new trial ordered.
The court was in error in permitting Dr. Hubbard to testify to the statement made to him by the little girl, when brought to his office by her mother, several days after the alleged offense. Such repetition of the accusation, previously made to the mother, was improper and should not have been permitted to serve as corroborative of the statements made by the girl in court. That such purpose was permitted appears from the following instruction to the jury:
"The testimony that Dr. Hubbard gave here likewise is merely corroborative. The testimony of both of those witnesses is corroborative in two respects, if true, and particularly as far as it tends to corroborate the story the girl told upon the stand, as to the truth of her claim."
If such be declared the rule then a child may, by statements to many persons, be corroborated in court by each merely telling in court what the child said to them out of court. No such rule prevails.
The fact that a child of tender years complains of sexual abuse may be shown, but repetitions of the complaint are wholly inadmissible. The first complaint by the girl was made to her mother. The offense was alleged to have been committed on August 10th, complaint to the mother was not made until several days later and, therefore, was too remote to be a part of theres gestæ. People v. Tobin, 230 Mich. 214. There was no claim of coercion or threats operating to delay complaint and the holding
in People v. Gage, 62 Mich. 271 (4 Am. St. Rep. 854), does not apply. Because of the unexcused delay in making complaint even the mother could not, in corroboration of the child, or for any other purpose, detail the statement made by the child with reference to the alleged offense. People v. Hicks, 98 Mich. 86;People v. Place, 226 Mich. 212; People v. Tobin,supra.
The court was also in error in receiving the testimony of the physician who examined defendant at the jail and in submitting such testimony to the jury. The circumstances surrounding such examination were in dispute and the result of the examination was not admissible unless defendant voluntarily submitted his person to examination. The jury should not have been permitted to consider the result of the examination unless it was found by the jury to have been a voluntary submission by defendant. Defendant was not permitted to explain why he submitted. The court instructed the jury:
"Now, the local doctor, Dr. Lilly, has testified about that examination and to the extent that he found the disease to exist in the respondent. His testimony would be corroborative to an extent, if true, of the testimony of the girl.
"It can be used for that purpose only and for no other. Some criticism has been based upon the means and methods by which this examination was had. That is not for your consideration at all. That is a matter to be passed upon by the court and it was passed upon by the court. The testimony was admitted. It is for your consideration and you have no right to reject it unless you find it to be false."
All authority holds that an accused may not becompelled to submit to such an examination as was
had in this case. This is because Art. 2, § 16, of the Constitution of this State provides:
"No person shall be compelled in any criminal case to be a witness against himself." * * *
An accused may, of course, consent and furnish evidence against himself but, unless he consents, the examination of his person cannot be made. Consent cannot be predicated upon failure to protest or resist. Ignorance of right to resist, fear under the distress of arrest and confinement, may lead a prisoner to be passive, or even to comply with a request to exhibit his person to medical examination, without loss of the protective provision in the Constitution. It was not enough to show that defendant was a docile prisoner and failed to protest or resist. To constitute the result of the examination lawful evidence it was necessary to show that he voluntarily exposed his person, or, at least, was willing to be examined. No court in this State would assume power to order such an examination. It was ordered by a magistrate in England and the magistrate and doctor were later cast in damages for an assault. We quote the syllabus:
"A magistrate has no right to order an examination of the person of a prisoner. An examination by medical men, in pursuance of such an order, of the person of a female, in custody upon the charge of concealing the birth of her illegitimate child constitutes an assault." Agnew v. Jobson, 13 Cox's Cr. Cas. 625.
That was a holding at circuit but well states the common law. See Union Pacific R. Co. v. Botsford, 141 U.S. 250
(11 Sup. Ct. 1000).
In the case at bar a mere ministerial officer called in a physician and assumed to exercise a power no
court could extend to him, and, because the prisoner submitted without protest or resistance, it seems to be thought that he volunteered to disclose evidence against himself. If an examination of an accused extends to his private parts the result thereof cannot be received in evidence unless it affirmatively appears that he consented thereto.
In Union Pacific R. Co. v. Botsford, supra, we find this:
"As well said by Judge Cooley, 'The right to one's person may be said to be a right of complete immunity: to be let alone.' Cooley on Torts, 29."
Defendant was not let alone but brought from his cell by his jailer to be subjected to medical examination in an effort to discover evidence tending to establish his guilt. Defendant was about to be released on bail and it was evidently considered that if the examination was had it would have to be made while he was in custody.
Our attention is directed to the holding in People v. Glover,71 Mich. 303, as authority for the examination. The protection of an accused against being required to furnish evidence against himself was not presented in the Glover Case or there considered. The court merely held that the relation of physician and patient did not obtain, and, therefore, the testimony of the physician did not fall within the rule of a privileged communication. This is made plain by the opinion. The brief in behalf of defendant in the Glover Case urged that the physicians who made the examination "became his physicians, and the relation of physician and patient became established," and "the result of that examination was privileged." Duress was also claimed. The Glover Case is not authority upon the question before us.
It cannot be said, under defendant's testimony, that he voluntarily submitted to an examination of his person. At most he involuntarily submitted. Submission alone establishes no waiver. Voluntary submission may, but involuntary submission, never. Defendant was not permitted to tell why he submitted. He should have been allowed to do so even though contradicted by his action and words.
Cases in the books involving the charge of rape, and venereal disease of the victim, with one exception, disclose no instance where a court of last resort, in jurisdictions having a constitution containing a provision like ours, sanctioned an examination of the privates of an accused without his consent.Angeloff v. State, 91 Ohio St. 361 (110 N.E. 936), is the exception, and there the decision was based upon a submission, without objection and with knowledge of the purpose. That case is not satisfactory, contains no reasoning, mentions no constitutional provision, states no ground of objection urged or considered, and does not disclose any of the circumstances showing the asserted submission.
We now turn to cases directly in point. In State v. Newcomb,220 Mo. 54 (119 S.W. 405), the charge was rape and a physical examination of the accused, while in custody, was ordered by a magistrate. The court held that the examination was a violation of the protection afforded by the constitution. It was also said by the court:
"Some effort was made to show that defendant voluntarily consented to this violation of his person, but we think it is apparent that he simply submitted because he thought he was compelled to do so. When it is considered that he was at the time in custody for this very crime; that the prosecuting attorney demanded an order from the justice for this examination;
that the sheriff took him into a private room for the purpose of the examination, it is not strange that the defendant thought he was compelled to submit. It is idle to talk of his having voluntarily consented to this violation of his person. As we read the record, he had no option in the matter.
The point was again considered in State v. Horton,247 Mo. 657 (153 S.W. 1051). We quote:
"Defendant insists that the physicians who examined him while he was in custody should not have been allowed to testify to the fact that he was suffering from a venereal disease. To meet this insistence the State contends that the examination complained of was made with defendant's consent. We have read the record carefully and find that the 'consent' consisted of the failure of defendant to object to the physical examination.
"When a man is under arrest, without counsel, and, speaking metaphorically, is standing in the shadow of a policeman's club, it requires something much more substantial than silence to justify an invasion of his constitutional right not to be compelled to furnish evidence against himself."
In State v. Matsinger (Mo.), 180 S.W. 856, the charge was assault with intent to rape. The prosecuting attorney sent physicians to examine the accused to discover if he was afflicted with a venereal disease. The accused was not apprised of his right to resist the examination and was merely silent, when informed that the physicians were there to make it, instead of positively consenting thereto. Again the court held the evidence obtained under such an examination was inadmissible. See, also, State v. Height, 117 Iowa, 650
(91 N.W. 935, 94 Am. St. Rep. 323); People v. Akens, 25 Cal.App. 373
(143 P. 795); People v. McCoy, 45 How. Pr. Rep. (N.Y.) 216; Voorhees on Arrest (2d Ed.), § 212.
We have decided to follow the holdings in cases involving rape and not the cases merely involving measuring of the foot of an accused, exhibiting a wound on the arm or tattoo marks, scars on the face or portions of the body usually exposed, requiring a prisoner to stand up, and like cases.
For the reasons stated the conviction is set aside, a new trial granted, and defendant remanded to the proper custody.
FELLOWS and CLARK, JJ., concurred with WIEST, J. McDONALD, J., concurred in the result. POTTER, J., did not sit.