*1 Michigan Reports. The judgment decision of the Michi- affirming gan employment security commission is reversed. The cause is remanded, with instructions to enter an order fixing appellant’s contribution rate at 2.7 % for 1957.
Under the circumstances of this record, we believe appellant have should costs. J., C.
Carr, and Dethmers, Kelly, Kav- Black, JJ., concurred. anagh, Souris, Smith, In re VICKERS.
1. Witnesses — Self Incrimination. A compelled witness not might answer which ' tend person (Const to incriminate 2, 1908, 16). art § 2., Same —Self Incrimination —Constitutional Law. The privilege against constitutional self incrimination excuses making any witness from question answer to a though even
n question way incriminate, would not .answer if the opposite (Const 1908, answer do 2, so art § 3. Same —Nonincrimination Answers.
The privilege against constitutional self incrimination does not excuse the witness answering where an answer ' way either incriminate, would not and whether or not it would is a matter judge for the determine, (Const the witness 2, 16). art § . [4] [6] [7] [1] [2] [3, . r Woman 5] '14 Am accomplice. 1 Am Jur 58 Am Am58 1 Am Jur Am Jur, Jur, Jur, Jur, 2d, 2d, References Witnesses Criminal Law' 77. Witnesses .139 whom abortion is Abortion Abortion Witnesses ALR 993. §§ § . §§ § for Points §§ 47, 53, 11. ei seq. 11. 82. 57. committed or in Headnotes attempted as an In re Conspiracy and Information. —Abortion—-Indictment 4. against- charge not lie A to commit abortion will - participants, action since abortion involves concert of victim, perpetrator the immediate effect between the *2 only conspiracy reaching participants and' of consummation objective to commit it is such close connection with the inseparable as to be from it. offense Incrimination. 5. Witnesses —Abortion—Self questions, pre- put to to her on Refusal of witness answer liminary physician, in a criminal ease which a examination charged conspiracy to commit the erime of abortion with women, gone pregnant as to whether or not she had ever to on services, office, gone professional his office for ever his ever gone purpose consulting him office for of about herself, obtaining performed ever an abortion on and whether he held, her, proper for an abortion on to constitute a basis holding guilty contempt, her of since the answers thereto abortion, conspiracy her would not incriminate of to eommit aider, abortion, abettor, adultery, accomplice, of as an or of conduct, cohabitation, disorderly lewd and lascivious violation of aet, (Const the Federal slave or white other conceivable offenses 2, 16; 750.14, 767.39). art CL § §§ Abortion- —Statutes—Common Law. <3. circumstances, making felony, The statue a under certain perform upon provide an abortion woman does not offense, herself shall be an and woman since at guilty (cid:127) guilty though law she was not of á even common erime she performed aborting aet herself or assisted or as- thereto, sented she not be held either for abortion accomplice (CL 1948, 750.14). an Criminal Law —Aiders Abettors. 7. '- principals Aiders and abettors to erime cannot be held as they statutory designation persons are outside the who may commit the crime. Macomb; Appeal (Howard Carroll R.), J. 7, 1963. No. May (Calendar Submitted Docket No. Decided 49,301.) 1963. September 4,
Habeas Eileen Pat corpus by Vickers directed to tbe sheriff of confine- county challenging Macomb n ment in Francis A. county jail Castellúcci, justice Michigan Reports. peace, contempt for for of court refusal to questions preliminary hearing during in a
answer appeals. case. Plaintiff Writ dismissed. Affirmed. plaintiff. Goetz,
John J. George Tony Attorney, Prosecuting Parris, N. Attorney, Prosecuting Ferris, Assistant for the people. appeal J. This from a circuit Dethmers, dismissing corpus
court order the writ of habeas inquire legality petitioner’s issued to into the county jail by justice peace commitment to contempt for put for refusal to answer certain people’s preliminary
to her as a witness at a Emery examination in a criminal case in which Dr. *3 including petitioner, J. charged Gilbert others, were conspiracy to commit the crime of pregnant abortion on women. questions put
The to were as follows: you go “Q. Did ever to his office?” you go “Q. Vickers, Miss did Dr. ever to Gilbert’s purpose professional officefor the of services, from Dr. Gilbert?” you “Q. witness, Now isn’t it a fact that went to purpose consulting Dr. Gilbert’s for the of office yourself?” obtaining
with him about on abortion perform “Q. Didn’t Dr. Gilbert an abortion on you?” ground She to refused answer on that “it justice incriminate me”. For such refusal the of peace contempt guilty found her court, of open presence judge committed in court in the county jail thereof, and ordered her confined in the In re 117 purge contempt by herself shall until she answering questions. said questions might in to the tend to
If answers lawfully petitioner, could not re she be criminate quired Michigan to answer under Constitution provides person art which “no shall 2, 16, compelled any criminal case to be witness be though against question way an answer to a himself.” Even oppo 1 would not if the incriminate, might, privilege the constitutional site answer making excuses the witness from answer thereto. cited therein. In Allison, re 156 Mich 34, and cases way If an answer either to the would not compelled incriminate she be her, answer. judge. court, witness, Of that the not the (5 31); Moser, re Mich Ann In re Mark, 138 302 Cas People, Danziger, 146 Mich rel. 714; Moll, ex v. 238 (52 136); Mich 39 ALR Trial 244. Burr’s per concert of action Abortion involves between perpetrator and the sons, victim, immediate only partici reaching effect of consummation respect adultery, pants, bigamy, incest, as also dueling, charge conspiracy which a to commit participants. the offense will not lie the 2 This is because the to commit them is objective in such close connection with the offense inseparable them. Curtis v. United (CCA 10), Lisansky 67 F2d 943; States States v. United (67 67).
(CCA 4), F2d 846 ALR See, (46 Katz, also: United States v. 986);
513; L States, 70 ed Gebardi v. United 287 US 35; S L ed 84 ALR Ct Hence, petitioner’s answers not incriminate her of would *4 conspiracy to commit abortion. charged
Could she with abortion? CL (Stat 28.204), guilty § § 750.14 Ann declares one felony performs circumstances, under certain who, upon provide an abortion It does not woman. (cid:127) Michigan Reports. ' guilty the woman herself shall be of an At offense. guilty common law she was of a crime even not. though performed upon aborting she act herself Carey, or assisted or assented thereto. State v. (56 632). majority 342 A The Conn view is that only may upon she not be held for abortion herself accomplice. but neither an as annotations at See seq. 139 ALR et (Stat 28.979), provides § §Ann
CL 767.39 procures, who one counsels, aids, abets may commission of an and convicted, offense be tried, punished directly as if he had committed the People offense. In Court said: Meisner, v. 178 Mich this only by “Where offense can be committed specified charged class, aiders and abettors cannot be principals they designa- are outside the statute tion.” petitioner
Inasmuch, then, as cannot be held for com- mission of the crime of abortion she herself, may not be held as an aider or abettor thereof. petitioner’s suggested
It is brief that answers by questions might to the stated tend to adultery, incriminate her of cohabitation, lewd and lascivious disorderly violation of conduct, Federal white slave act * or other offenses. How this spelled could be is not out. In the case of re Schnitzer, 295 Mich this 740, 741, Court said: permit “The Constitution does not the witness To arbitrarily danger’ (In intangible hide behind a fancied or supra). tendency Moser, re The to in- must one; criminate be a reasonable an answer might possibly not be withheld because it under some part conceivable circumstances form of a crime. 8 * * * Wigmore (3d ed), p § on Evidence 354, 2260. 2421.—Reporter. (1958 ed), * 18USC *5 In re parte Ohio), (SD Judge 74 F 954, 960, In Ex Irvine Taft wrote: “ impossible question ‘It to conceive of a which proving- link in not elicit fact useful as a supposable crime a witness. The mere some place his statement name or of of residence of might identify enough him a but is not felon, question may that answer to furnish evidence which, out of the mouth of a fact witness’ some imaginary hypothesis, in the chain of must wanting link would be the proof against him of a crime. It appear court, to the the character of question, and the other adduced in the facts case, tangible proba- there is some and substantial that bility help that the answer the witness ” him a convict crime.’ We hold that the answers would not tend to in- any criminate her of other those conceivable offenses.
Affirmed. J., Carr, Kelly, Black, C. and Kavanagh, Smith, JJ., J. with O’Hara, Dethmers, concurred (concurring). agree J. While I can Souris, reasoning by Justice Dethmers’ which and the conclusion, that conclusion, he reaches that not entitled assert her State constitutional privilege (Michigan 16) Constitution of art to refuse answers to the last 3 of the privi entitled to asked,1 I believe she was invoke the lege refusing to answer the first un scope, limited in its would be entitled to invoke purpose of abortion office for “Q. “Q. “Q. “Q. Miss Didn’t Dr. Gilbert Now Did on professional yourself?” witness, you Vickers, purpose ever go isn’t did services, to Ms office?” perform you it a fact consulting ever from Dr. Gilbert?” an abortion on go with him to Dr. you Gilbert’s office for the- went you?” about to Dr. Gilbert’s obtaining an. Michigan Reports. inquiry further to answer broader
it to refuse necessary per- ascertain Dr. whether Gilbert than upon petitioner and, so, formed facts involved abortion specific My event. reason inquiry rigidly limiting scope of this wit- so *6 performed in that, if fact an abortion ness Gilbert relating only upon once the facts thereto are her, to assert con- known, is entitled the same privilege upon inquiry stitutional associations with further about her any,
Gilbert, that other wit- be entitled to ness would assert. apply
Absent command to the Fifth Amendment the of the to Constitution United States by to cases such as this and a State confronted still binding contrary, command to the Adamson v. California, 332 91 L ed 1903, 1223), only regard ALR we need Fifth Amend- guidance2 ment Federal court cases as sources in shape formulating the and substance of our own identically guarantee. worded State constitutional highly they persuasive, me, For lieving however, are be- uniformity I do of construction in such cases is much to be I desired. turn, therefore, beyond to Federal to cases determine the bounds petitioner may compelled testify which without be
risking self incrimination as an abortionist upon an aider others, and abettor therein, upon member of a to commit abortion others. begin parte (SD 1896), with Ex Irvine Ohio, quoted by approval
F with in In this Court re Schnitzer, 295 Mich in which turn is relied proposition up Justice the that to Dethmers, privilege hold invocation of the self incrimi- ing Judge nounced Justice Dethmers’ As we did in in Mx Taft’s parte opinion. “tangible ease Irvine In re (SD and substantial Schnitzer, Ohio, 1896), probability” F74 Mich 736, by quoted test an adopt re appear court, from “it must nation, n character ad- other facts tangible and is some that there case, in the duced substantial probability of the wit- that the answer 960) help may a crime.” him of to convict ness Judge Case, that in the Irvine noted It be should copetitioner’s con- his Irvine’s Taft reversed tempt testimony been earlier There had convictions. petitioners called as wit- were .at the trial which headquarters petitioners visited had nesses peti- policy questioned, alleged writers. When (cid:127)of say certain individuals refused to whether tioners policy that Irvine’s admis- were writers. Taft held occupa- knowledge sion the individuals’ as to fact that to establish the tions would those individuals evidence policy fact were which writers, chain of evidence material link would be charge conspiracy”. guilt “on establish Irvine’s In a admission of associations like manner Vickers’ apart oc- Dr. such as have Gilbert, *7 during upon a link an abortion could her, curred in a be leading abortion, chain to her conviction for own aiding abortion, therein or to commit Judge practical application of others. Taft’s “tangible probability” substantial test, disposition his actual of the Irvine evidenced negate (cid:127)Case, does not of identical assertion our State privilege by supreme
In
cases, moreover,
more recent
court
the
“tangible
has indicated a relaxation of the
and sub-
probability”
by Judge
stantial
Taft.
test enunciated
(71
(1950),
In
v. United States
might him A when A have connected was jury grand eluding and, therefore, that witness the peril prosecu- might “reasonably of have the sensed ranging from tion for Federal offenses to obstruction conspiracy” Court then The stated: “In ‘perfectly setting clear, from a careful this all of the circumstances case, consideration [s] that the mistaken, witness is answer that the cannot possibly tendency’ to incriminate,” have such Temple (1881), citing v. Commonwealth 75 Va pages 486, 487, 898. At court added: “To sus- only privilege, it tain the need be evident from the implications setting of the in the in which responsive question asked, it is answer to the explanation why or an of it cannot be answered dangerous injurious because disclosure supreme could result.” shows, As court Hoffman responsive possibility compelling to the a wit- charge conspiracy. ness in a to incriminate himself (1950), (71 In Blau v. United States US 170), supreme 95 L ed court reversed petitioner’s contempt by refusing conviction for jury questions grand regarding answer her associ party ation with Communist members and her knowl edge organizational party. structure * * * “Answers would have furnished a link in prosecution the chain of evidence in a needed (or conspiracy violate) for violation of (p 161) the Smith act.”3? Emspak (1955), v. United States 997), petitioner S L Ct ed refused to questions relating alleged
answer to his associations Reversing contempt with Communists. conviction, knowledge court held: “To reveal about- *8 the named having individuals—all of them been previously charged with Communist affiliations—- USC (1958 ed), 2385.—Repoeter. In re in ‘a link the chain’ furnished could well have prosecute petitioner a for Fed- to needed evidence ranging the to violate from eral crime, * * *” 200). (p 201): And later act Smith n “That being of the it immaterial that is some so, sought information associations about explain to on some have able been If an an- innocent unrelated Communism. basis incriminatory, question may a tend to be swer to a protection deprived of the is not witness subsequently merely privilege the witness because perhaps prosecuted inference of refute could arising guilt the answer.” from ap- p the with 198, at Court cited 18, footnote Coffey proval language in United States v. used express (CCA 1952), 438, the test 440, 198 F2d determining privilege legiti- was for whether mately (1) enough “‘It that the trial invoked: conceivably by argument pros- court be shown ecutor, how building seemingly answer, harmless on the might proceed step step to link witness n somecrime (2) States, and the United suggested linkage not seem this course and scheme particular in the circumstances of incredible ” promulgated this case.’ test The third circuit court experience noteworthy after its United States Greenberg 1951), (CCA v. 187 F2d wherein contempt affirmed the conviction of witness who grand jury4 testify regarding before refused engaged in which he was and his ac- business quaintance its with certain numbers runners. On appeal, first court remanded the case light for consideration decision its Hoffman. Greenberg (1951), v. United States Upon appeal again L ed prior judgment, the third of its circuit’s reaffirmance Hoffman v. Tie same grand jury United States, before. wMeh Hoffman supra. called testimony. *9 124 Michigan Reports. supreme
192 F2d
201,
court reversed without
opinion, merely citing
Greenberg v.
Hoffman.
(1952),
(72
United States
For a time it have been that cases distinguishable like that tain were in Yickers Hoffman they persons involved who had achieved a cer- notoriety any and, so, assoeiational admissions persons likely incriminating were more to be by reputable than would such admissions citizens. supreme (p 489) Note that the court in Hoffman that Hoffman commented had been mentioned often newspapers prominent in the as a racketeer with a police long Emspak in record; in commented, petitioner like that manner, had been named as a in a Communist Smith act trial in Thus, 1949. (CCA 1956), United States Trock v. 232 F2d 839, grand jury ques- where witness refused to answer regard tions with court to his associations, circuit upheld resulting contempt dis- conviction, tinguishing 843) in that here Hoffman a notorious criminal or racketeer nor was anyone else whose name was mentioned the hear- ings Judge before the district court. However, ground (p peti- Medina 846) dissented on the participated, tioner turn out to have in some way, illegal direct or involving remote in an scheme some of any the individuals in informa- provided by tion answers to might complete completion or lead to the of the chain proof against him. The court reversed opinion, citing without Trock United v. Hoffman. In re (1956), L ed States Judge dissenting also, Lumbard’s See, opinion Courtney (CCA 2,1956), States v. United longer It is no 236 F2d 921. tenable claim Emspak only tests are confined Hoffman publicly instances where the claimant is notorious directly investigation. involved in under matters *10 quite closely analogous A Federal case to the (ND case is Hitson Cal, Vickers v. United States 1959), Supp grand jury 177 F 834. Before a in vestigating Mann act5 violations, a witness refused questions you engaged to answer “Have ever as, prostitution?” questions asking in and her to name provided transporta individuals had who her with judge, purportedly adopting tion. The district applying suggested by the test the third circuit Coffey supra, approved by supreme Case, the court in the
Emspak, contempt, convicted the witness of (p 843) probability since there “is no reasonable that the witness would or have, could have incrimi nated herself under Federal law” had she an questions. the swered The circuit court reversed, (CCA 1960), In nom., sub re Shane 283 F2d stating 357) might that the asked lead showing party [witness] '“to a had been a transportation (or the of some other woman con spiracy) in interstate commerce in the violation of being Mann act.” Mann Under the act the woman transported prosecution, just is immune from participant the in an abortion is immune from prosecution, case; as Justice Dethmers notes this appeals recognized the circuit court of nonetheless, possibility that there still existed the that the woman conspiring be liable conviction for to trans port purposes by proscribed other women for the Mann act. 2421.—Reporter. (1958 ed), 18 USC Michigan Reports. Although principally during it has been the last years Federal so that the courts have formu presently recognized scope protec the lated the by concepts tion Fifth Amendment, afforded expressed in the Federal cases discussed above are (1892), not new. Counselman v. Hitchcock 1110), 35 L US court ed “It we said: reasonable construction, provision, think, constitutional that the wit protected being compelled ness is ‘from to disclose circumstances of offence, sources from by or the which, which, means evidence of its com or of mission, his connection with it, be ob or made tained, using effectual his connection, without his answers as direct admissions Nothing him’ ”. is due less Miss Vickers, clothed by immunity as she is the mantle of testimonial granted counterpart provision her of our State Constitution. Subject foregoing I to the limitations, concur affirmance.