Opinion of the Court
GEORGE W. LATIMER, Judge:
Appellant was convicted by a general court-martial of wrongful use of a habit-forming narcotic drug (morphine) in violation of Article 134, Uniform Code of Military Justice, 50 USC § 728. He was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for two years. The convening authority approved the findings and so much of the sentence as provided for a dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The board of review aifirmed without opinion and we granted accused’s petition for review.
Briefly, the pertinent facts of the case are these: On the evening of April 12, 1953, after having consumed a considerable amount of alcoholic beverage, the accused entered the house of a Japanese National located in Sendai, Japan. During his stay a hypodermic injection was given to him by one of the female occupants of the place or by his companion. The accused’s reaction to the injection was instantaneous and he lapsed into a coma. His condition caused alarm and he was taken by a military ambulance to a hospital where he was examined by a medical officer of the United States Army. While still unconscious from the effects of the drug, a specimen of urine was extracted from his bladder by the use of a catheter. The specimen was analyzed and the presence of morphine in the system was disclosed. The results of the analysis were offered in evidence; no objection to their admission was registered by the accused, and the testimony was admitted. We granted accused’s petition for review on two [322]*322issues, but our conclusions on the first is dispositive of the case and the second becomes immaterial. The issue to be resolved is whether the obtaining of the evidence from the accused by use of a catheter, without warning and without knowledge on his part, constituted a violation of Article 31, Uniform Code of Military Justice, 50 USC § 602, which, for the purpose of this case, we will equate to the Fifth Amendment to the Constitution.
On three previous occasions we have answered questions involving the privilege against self incrimination which arise out of factual situations different from, but similar to, the one which now confronts us. Specifically, we concluded in United States v. Rosato, 3 USCMA 143, 11 CMR 143; United States v. Eggers, 3 USCMA 191, 11 CMR 191; and United States v. Greer, 3 USCMA 576, 13 CMR 132, that an accused is protected by the provisions of the Uniform Code of Military Justice from being compelled to give evidence against himself either by word of mouth or by furnishing specimens of his handwriting. In those holdings, we attempted to distinguish the handwriting and verbal utterance situations from the fingerprint, foot-in-footprint, coat and hat fitting cases, on the grounds that the former required active and conscious use of the mental faculties on the part of an accused to complete the. chain of incriminating circumstances, while the latter involved the production of testimony which could be obtained without compelling the accused to use any of his senses to assist in his conviction. Our duty here is to develop further the concepts and place cathe-terization in its proper category. In doing so, we limit ourselves to the scope of the privilege against self incrimination for, as we develop the subject, it will become apparent why we find here neither a violation of military due process nor unreasonable search and seizure. Moreover, we will not concern ourselves with collateral issues such as might be involved in cooperation on the part of the accused or waiver of his privilege.
Determination of the issue is aided by evaluating the conflicting concepts found in the civilian cases which have given thought and consideration to the problem. We first refer to the state cases. In those jurisdictions we find one line of authorities dealing with the extraction of fluids from the human body by scientific means and without permission, which hold that the privilege against self incrimination is not violated as the privilege is limited to testimonial utterances of the defendant, either oral or written. This view is supported by the weight of authority and the later decided cases. Generally speaking, the rationale is founded on the concept that the privilege was created to prohibit a defendant from being compelled to confess his own sins. For example, the court in Commonwealth v. Statti, 166 Pa Super 577, 73 A2d 688, at page 691, states:
“ . . “Unless some attempt is made to secure a communication, written or oral, upon which reliance is to be placed as influencing his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one.” 8 Wigmore on Evidence (3d Ed) 375, sec 2265’. (Emphasis ours.) The distinction may rest upon practical grounds, but certainly one lawfully arrested may not refuse to submit to finger printing, nor to a search of his person. So also the constitutional privilege does not allow a defendant to refuse a witness the opportunity of seeing him and hearing his voice, for the purpose of identification. Cf. Johnson v. Commonwealth, 115 Pa 369, 395, 9 A 78. The privilege did not prevent the Commonwealth from requiring some of the defendants to stand in the presence of the jury, as they were identified by a witness in Commonwealth v. Safis et al., 122 Pa Super 333, 186 A 177. Wigmore on Evidence, (3d ed) VIII contains a discussion of the subject and in § 2263 it is stated that historically the object of the privilege was to prohibit ‘the employment of legal process to extract from the person’s own lips an admission of his guilt which will thus take the place of other evidence.’ And Wigmore states the general principle of construction thus: ‘The [323]*323privilege protects a person from any disclosure sought by legal process against him as a witness.’ In other words the protection afforded under the generally accepted rule, is a privilege against testimonial compulsion, and no more. While there is a conflict of authority outside of Pennsylvania as to whether anyone other than the accused may testify as to the result of blood tests, urine tests, or other physical examination of the accused made without his consent, in our opinion the better considered cases hold that the privilege against self-incrimination is not thereby violated.”
In Block v. People, 125 Colo 36, 240 P2d 512, where blood was taken from the accused while unconscious, the Colorado Supreme Court said:
“A study of the history of the development of such a constitutional provision as contained in our Colorado Constitution indicates that the original intent was to prevent a defendant from being forced to give testimonial evidence against himself, and did not contemplate the exclusion of evidence of physical facts relating to the defendant. 8 Wigmore on Evidence (3d ed) p 276, § 2250. This line of demarcation is clearly set forth in Mr. Justice Holmes’ opinion in Holt v. United States, 218 US 245, 31 S Ct 2, 6, 54 L Ed 1021, as follows: ‘Another objection is based upon an extravagant extension of the 5th Amendment. A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statements inadmissible,- and that it should be excluded for the same reasons. But the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Moreover, we need not consider how far a court would go in compelling a man to exhibit himself. For when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent. Adams v. New York, 192 US 585, 24 S Ct 372, 48 L Ed 575.”
In State v. Cram, 176 Ore 577, 160 P2d 283, 289, which has been cited in many later cases, the Supreme Court of Oregon held admissible testimony concerning the alcoholic contents of a blood sample taken from an unconscious victim. That court expressed its view in the following language:
. . The blood sample was obtained without the use of any process against him [accused] as a witness. He was not required to establish the authenticity, identity or origin of the blood; those facts were proved by other witnesses.”
The court went on to say:
“If the evidence here under attack is inadmissible, it is difficult to understand under what theory fingerprints procured under compulsion, or evidence concerning them, as admissible. It is equally difficult to comprehend why the defendant is not denied his constitutional privilege against self-crimination by being required to do the many acts hereinbefore enumerated.”
There are many other jurisdictions announcing the same rule, and the statements following the citations are illustrative of the manner in which the evidence was obtained. In all cases, the evidence was held to be admissible. In People v. Tucker, 88 Cal App 2d 333, 198 P2d 941, a specimen of blood was taken from the defendant by a doctor at the request of police officers; in People v. One 1941 Mercury Sedan, 74 Cal App 2d 199, 168 P2d 443, a substance was pumped from defendant’s stomach; in State v. Sturtevant, 96 NH 99, 70 A 2d 909, a sample of blood was taken from an accused incapable of giving consent; in State v. Ayres, 70 Idaho 18, 211 P 2d 142, blood was extracted from the veins of an unconscious defendant; in Skidmore v. State, 59 Nev 320, 92 [324]*324P2d 979, a doctor examined a defendant for the purpose of determining whether he was infected with social disease; in Davis v. State, 189 Md 640, 57 A 2d 289, blood was obtained from accused by subterfuge; and in State v. Alexander, 7 NJ 585, 83 A 2d 441, blood was extracted from accused by use of a hypodermic needle.
The contrary view is not without support in some state cases although they are limited in number. Furthermore, in a few of the cases we have cited in support of the other view, there are vigorous dissents. Representative of this particular line of authorities is the case of Apodaca v. State, 140 Tex Cr 593, 146 SW 2d 381. There the court held inadmissible testimony concerning the taking and results of intoxication tests given a defendant, as well as the tests made on a specimen of urine taken from him. That court asserted :
“. . . Demonstration by an act ‘which tends to self-incrimination is as obnoxious to the immunity guaranteed by the Constitution as one by words.’
**. . . The rights intended to be protected by the constitutional provision that no man accused of crime shall be compelled to be a witness against himself are so sacred, and the pressure toward their - relaxation so great when the suspicion of guilt is strong and the evidence obscure, that it is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is directed not merely to the giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth, the divulging, in short, of any fact which the accused has a right to hold secret.”
In Bethel v. State, 178 Ark 277, 10 SW 2d 370, 371, defendants were convicted of the crime of rape and appealed. A physician was permitted, over the objection of the defendants, to testify on the day following the crime that, at the request of the sheriff, he had made a physical examination of both defendants and found them afflicted with a venereal disease. The judgment appealed from was reversed. The court, after referring to the provision in the state constitution against compelling a person in a criminal case to be a witness against himself, and quoting from two Missouri cases, stated:
“. . . This testimony did not tend to prove the crime charged, but only tended to prejudice, degrade, and humiliate them before the jury. The majority of the court is of the opinion that the court committed reversible error in admitting the testimony of Dr. McCall.”
Several Iowa decisions are of importance. State v. Height, 117 Iowa 650, 91 NW 935, and State v. Weltha, 228 Iowa 519, 292 NW 148, are consistently cited as authority for extending the privilege beyond testimonial compulsion. While each discusses the privilege, the results of physical examinations were there excluded on the ground they were obtained by unlawful search and seizure. It is of interest to note that the court in State v. Height, supra, had substantial doubts whether the Iowa Constitution, which provides merely that defendants in criminal proceedings shall be competent witnesses in their own behalf but cannot be called by the State, was broad enough to cover the general ground of the usual constitutional guarantee against self-incrimination.
In State v. Newcomb, 220 Mo 54, 119 SW 405, we find that the Supreme Court of Missouri held that testimony by a doctor as to the cause and results of his physical examination of defendant, accused of rape, was inadmissible and violative of defendant’s right not to be compelled tó testify against himself. As authority this court cited State v. Height, supra, and State v. Young, 119 Mo 495, 24 SW 1038.
Having presented the state cases, we pass on to consider a few of those decided by Federal courts. At the present time they must be catalogued as not holding that the evidence is inadmissi[325]*325ble. Many of the state authorities quote from the opinion of Mr. Justice Holmes of the Supreme Court of the United States in Holt v. United States, 218 US 245, 31 S Ct 2, 54 L ed 1021. One quotation found in this opinion includes the important portion of the holding of that Court in that case and repetition at this point is unnecessary. No subsequent Supreme Court case has modified the principles enunciated in that opinion.
There are two circuit court of appeals cases which, while not touching on the precise question, are straws in the wind blowing in the direction of the admissibility of the evidence. In Bratcher v. United States, 149 F 2d 742 (CA 4th Cir), the defendant was ordered to take a physical examination for purposes of induction. Prior thereto he had taken benzedrine to increase his blood pressure and a urine analysis disclosed its presence. In ruling on the admissibility of that evidence in the criminal case, the court stated:
“We do not think that defendant’s physical examination could possibly be considered an unlawful search and seizure. The evidence was obtained under the Selective Training and Service Act and the regulations issued thereunder. We are therefore of the opinion that there was no violation of the Fifth Amendment in admitting this evidence.
“We are of the opinion that the action of the court below in refusing the motion to suppress the evidence was correct and that no constitutional rights of the defendant were violated by the admission of the evidence.”
In McFarland v. United States, 150 F 2d 593 (CA DC Cir), we find the views of the judges of that Circuit Court expressed in the following language :
“Blood was discovered on appellant’s body after the crime, by an examination to which appellant, an enlisted man, submitted under a military order. Though the court ruled out this evidence and instructed the jury to disregard it, the jury had heard something about it and may have been unable to disregard what they had heard. However, we think the evidence was admissible. ‘The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.’ Out of court as well as in court, his body may be examined with or without his consent.”
The parties in the instant proceedings rely on Rochin v. California, 342 US 165, 72 S Ct 205, 96 L ed 183, to support their respective contentions. In light of the issues, the pos ture of the evidence, and the views expressed in the principál and concurring opinions in that ease, we conclude that implicit in the holding is the rule that extractions of fluid from the bloodstream or foreign substances from the stomach are violations of the Fourteenth Amendment to the Constitution, provided they are obtained by means which offend against the canons of decency and fairness. Conversely, if they do not, then a state is free to obtain evidence in that manner. To bring into bold relief our reasons for so concluding, we quote first from one of the concurring opinions and then from the majority holding. We select the language used by Mr. Justice Douglas because his view on this one issue was concurred in by Mr. Justice Black:
“As an original matter it might be debatable whether the provision in the Fifth Amendment that no person ‘shall be compelled in any criminal case to be a witness against himself’ serves the ends of justice. Not all civilized legal procedures recognize it. But the choice was made by the Framers, a choice which sets a standard for legal trials in this country. The Framers made it a standard of due process for prosecutions by the Federal Government. If it is a requirement of due process for a trial in the federal courthouse, it is impossible for me to say it is not a requirement of due process for a trial in the state courthouse. That was the issue [326]*326recently surveyed in Adamson v. People of State of California, 332 US 46, 67 S Ct 1672, 91 L Ed 1903. The Court rejected the view that compelled testimony should be excluded and held in substance that the accúsed in a state trial can be forced to testify against himself. I disagree. Of course an accused can be compelled to be present at the trial, to stand, to sit, to turn this way or that, and to try on a cap or a coat. See Holt v. United States, 218 US 246, 252-253, 31 S Ct 2, 6, 54 L Ed 1021. But I think that words taken from his lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment.”
The majority of the Court refused to adopt that view and concluded to base their decision on the due process clause. Mr. Justice Frankfurter, speaking for the Court, applied general observations to the circumstances of the case and announced the majority rule in the following language:
“Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents— this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”
Many of the eases cited in this opinion are carried in the footnotes of that decision, and it would thus appear that the issue of taking evidence from the body of a defendant, unaccompanied by brutality, was considered but rejected as violating the due process clause. See also Adamson v. California, 332 US 46, 67 S Ct 1672, 91 L ed 1903. When the majority of the Supreme Court elected to base their decision on the method of obtaining the evidence, they inferentially held that, had humane methods been used, the rule of the Adamson case would have controlled. The decision, of course, leaves untouched the area of the Fifth Amendment except as it is mentioned in the two concurring opinions. But the Court’s opinion recognizes a field in which minds of reasonable men may differ. The opinion (Rochin v. California, supra) illuminates the area in which we are treading by stating:
“In deciding this case we do not heedlessly bring into question decisions in many States dealing with essentially different, even if related, problems. We therefore put to one side cases which have arisen in the State courts through use of modern methods and devices for discovering wrongdoers and bringing them to book.”
The California Supreme Court in the case of People v. Haeussler, — Cal App —, 260 P2d 8, considered its previous holdings in the light of the decision of the United States Supreme Court in the Rochin case, supra. That court arrived at the conclusion that the United States Supreme Court decision was based on the method of obtaining the capsule rather than on the grounds that there was a violation of the right against self incrimination. Mr. Justice Edmonds, speaking for the court, expressed the following views:
“The essence of the Rochin decision is in the court’s reference to Brown v. State of Mississippi, 297 US 278, 56 S Ct 461, 80 L Ed 682, and other coerced confession cases. In the Brown case, a conviction based upon a confession obtained by torture was reversed because such a practice amounted to a wrong ‘so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void’. 297 US at page 286, 56 S Ct at page 465. So, in the Rochin case, the court said: ‘Use of involuntary [327]*327verbal confessions in State Criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.’ 342 US at pages 173-174, 72 S Ct at page 210, 96 L Ed 183. In brief, the Rochin case holds that brutal or shocking force exerted to acquire evidence renders void a conviction based wholly or in part upon the use of such evidence.”
The question in the case at bar has been presented thoroughly by Dean Wigmore in his work on Evidence. In United States v. Eggers, supra, we gave consideration to his views. However, to develop further the matter, we set out his test. Volume VIII, section 2263, states:
"Looking back at the history of the privilege (ante, § 2250) and the spirit of the struggle by which its establishment came about, the object of the protection seems plain. It is the employment of legal process to extract from the person’s own lips an admission of his guilt, which will thus take the place of other evidence. Such was the process of the ecclesiastical Court, as opposed through two centuries, — the inquisitorial method of putting the accused upon his oath, in order to supply the lack of the required two witnesses. Such was the complaint of Lilburn and his fellow-objectors, that he ought to be convicted by other evidence and not by his own forced confession upon oath.
"In other words, it is not merely any and every compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion. The one idea is as essential as the other.
“The general principle, therefore, in regard to the form of the protected disclosure, may be said to be this: The privilege protects a person from any disclosure sought by legal process against him as a witness.”
It is contended that our decisions in the handwriting and voice cases extended the doctrine beyond the purview of that quotation. We can assume, without deciding, that there is merit in that contention; but, if so, we broadened the rule to protect the accused. However, as stated in Eggers, supra, Wigmore, in his model code of evidence, included handwriting as being within the privilege. He did not include blood sampling although that method is mentioned in his works on Evidence and the omission might be for the reason that he considered it outside the privilege. Be that as it may, we have charted our course and set out our test for admitting and rejecting evidence claimed to be self-incriminating. The test was phrased somewhat differently in United States v. Eggers, supra, and in United States v. Rosato, supra, but it is one and the same. In the former, Judge Brosman outlined the guiding principle in the following language:
“. . . Indeed, there is a distinct difference between the present handwriting problem, on the one hand, and the fingerprint and the foot-in-footprint situations, on the other. The latter require only passive cooperation, whereas the former requires active participation and affirmative conduct in the production of an incriminating document not theretofore in existence.”
In the latter, Chief Judge Quinn stated the test to be:
“. . . The compulsory production of a handwriting specimen goes far beyond the taking of a fingerprint, placing a foot in a track, an examination for scars, forcibly shaving a man or trimming his hair, requiring him to grow a beard, or try on a garment. Such instances do [328]*328not involve an affirmative conscious act on the part of the individual affected by the demand. Whereas the printing of the alphabet involves a conscious exercise of both mind and body, an affirmative action.”
Applying the test prescribed in those cases, or the one relied on by the weight of authority in civilian courts, we are constrained to hold that taking the sample of urine obtained from the accused, while unconscious, did not violate his privilege under Article 31 of the Uniform Code of Military Justice, supra.
One further matter bears discussion. The taking of fluids from the body by scientific means to aid in prosecuting may shock the conscience of some people. Undoubtedly it invades the right of privacy, but so do many other acts which are performed within the law. That right, like others, must be considered in the light of the Government’s right and duty to use humane methods and scientific means to detect crime. We expressly condemn acts which savor of brutality but responsible courts manned by outstanding jurists, and many enlightened students sympathetic to the rights of a defendant, have concluded that the methods employed here are within the standards which the public conscience will approve.
To substantiate this statement, we refer to the many cases cited in support of the admission of the evidence, to the failure of the Supreme Court to hold the method denied a defendant due process of law, and to the American Law Institute’s Model Code of Evidence. The Council of the American Law Institute sets out a statute prohibiting self incrimination (Rule 203, Self-Incrimination; General) ; but it added another provision relating to bodily examination (Rule 205, Self-Inerimination; Bodily Examination), in which it is spelled out that “No person has a privilege under Rule 203 to refuse . . . (b) to furnish or to permit the taking of samples of body fluids or substances for analysis.” It is unbelievable that the new rule would be offered for acceptance by the legal profession if it offended against the demands of fair play and decency. A comment on the rule by the National Conference of Commissioners on Uniform State Laws explains both the reason for its inclusion and its effect in the following language :
. . It is necessary here to be consistent with the policy of the Uniform Act on Blood Tests to Determine Paternity. Resistance to the force-able extraction of body fluids is not justified on the ground of privilege against self-incrimination, but may be warranted on the ground of violation of the right of personal immunity, if proper safeguards, such as supervision by a physician, are not provided. The rule does not attempt to solve that constitutional question, but limits its application strictly to the privilege against self-incrimination. A sample of spittle or a sample of stomach contents may be equally incriminating and they are on the same ground under this rule. But the taking of the sample from the stomach by stomach pump may be viewed very differently from the other when it comes to the question of safeguards to be taken to assure non-violation of the right of security of one’s person.” [Comment on Rule 25, Uniform Rules of Evidence drafted and approved by the National Conference of Commissioners on Uniform State Law at its annual conference in Boston, Massachusetts, August 17-22, 1953.]
We are not here presented with a factual situation in which the urine was obtained by force and violence or brutal methods, or where proper medical safeguards were not provided. Hence, a violation of the right of security of the person is not involved. We recognize the existence of that area and when the question is presented in a case in which application of that’ rule is relevant it will be disposed of on the basis of the facts involved. In the present instance it is sufficient that we hold the extraction of urine from the accused did not violate the rule against self incrimination.
[329]*329For the foregoing reasons, the decision of the board of review is affirmed.