*1 v. CORDER. PEOPLE Rape Law —Evidence. 1. —Criminal statutory a'seven-year-old girl, rape upon prosecution for In a to him testimony by physician as to statement made her a after occurrence by her he examined week when purpose alleged of offense not admissible in corroborating by her court. the statements made May Repetitions Complaint 2. be of Victim Shown Same — Inadmissible!. years complains tender of sexual child of The fact that a repetitions complaint are may shown, but of be abuse wholly inadmissible. ' Made; Days 3. Mother Several Late® not to Same' —Statement Gestje of Part of Res —Not Admissible Corroboration Victim. years Complaint by girl tender of sexual abuse made alleged days to mother several after the occurrence of her gestee, and, part the res remote to be a offense too' being excusing the there no claim of coercion or threats delay, detailing mother made statement alleged inad- the child with reference to the offense was child, purpose. other missible corroboration of the or for May 4. Constitutional Law —Criminal Not be Law —Accused Physical Compelled to to Examination. Submit (Art. 2, §16), Under the Constitution accused iihysieal pur- to a examination for the to submit pose furnishing evidence himself. Rape Furnishing Against Evidence '5. —Constitutional Law —
Oneself. statutory physical charged rape A of one with gonorrhea may determine whether he is not be afflicted custody thereto, and, while he is in unless he consent to constitute order the result of sueh lawful against him, necessary it is that he show volun- admissibility incriminating evidence furnished de- As compulsion, acting see annotation 32 L. R. A. under fendant 772; 849; 1332; S.) A. L. R. 22 A. L. R. (N. L. R. A. 1918B Corder. or, least, willing person, at to be tarily exposed his examined; being enough show that he it not failed to protest resist. *2 Sharpe, JJ., dissenting. J., and North and Fea», O. Hawley (Royal A.), Montcalm; Error J. Sub- (Docket 1928. 14, 120, mitted June No. Calendar 33,593.) No. Decided October Lynn statutory rape, was convicted of and Corder imprisonment sentenced to for life the State prison at Jackson. Reversed. Goggin Penny H. and & for Worcester,
Charles appellant. Attorney
Wilber Bruchеr, General, M. and D. Prosecuting Attorney, people. Brahe, Hale (dissenting). Fead, C. J. Defendant was con- statutory rape, August victed of committed 9 or years 10, 1927, his Norma niece, Wilson, 7 old. August physician, On 17th, she was examined aby gonorrhea. Dr. M. S'. Defendant was arrested and Hubbard, found have August 18th and remained jail August until about noon An 19th. hour be- jail fore release, a relative called at the and told arranged him that bail had been and he would released in about A an hour. half hour later, physician, Lilly, appeared jail Doсtor at the and defendant, examined and testified on the examina- gonorrhea. tion and trial that he' had Defendant claims that this was an invasion of his rights constitutional kCthat it him to be a witness himself.
Defendant’s of the incident was that version deputy charge Fries, Robert sheriff then in Michigan Reports. into the cor- block jail, from the cell called him Lilly and said: Doctor him to introduced ridor, then went Fries examination;” for an “Come away, or 12 feet corridor, other end Lilly nothing “I Doctor said: more; and did said equivalent; here for an examination” or the came exposed himself nothing in the made. There is record to indicate compulsion, promise fear, or reason for fear, threat, inducement than above Before other as stated. suppress the testimony defendant made a motion to trial, Lilly, supporting of Doctor and in the affidavit no statement of fact consent had not the examination been free. The motion ground was overruled on the that the examination *3 voluntary. Upon had been the trial, defendant’s objected testimony Lilly, of counsel Doctor ground urged, on the constitutional and defendant questions (which objected was asked several were objections sustained), purport which was whether he had wanted the examination, whether he it could had knew not be without his con- why object, he did not sent, whether knew the purpose of it use it, and the that would be made of why he submitted. jury charge,
In the the court instructed the methods of the examination the means and were they and that should consideration, for their not they reject unless the doctor’s found it testimony, Defendant, in his denied false. produced having gonorrhea, medical but wit- nesses. person crim “No shall be 1. witness nor be de- himself, case be a
inal Cobdeb. prived liberty property, proc- life, or without due Const, § ess of 16. 2, law.” art.
Whether such an examination as defendant had, compulsory, if would be a violation of this constitu- provision tional in conflict, numerous authorities condemning holding it and numerous others that the prohibition only testimony. extends to oral 2 A. L. R. note; L. R. A. R. A. note; 32 L. 699, (N. S.) 772, note; note; L. R. A. 1918B, 844, C. J. p. 566. this will
However, discussion be confined voluntary. whether defendant’s submission was physical Upon phase, on the authorities exam- this analogous law of abundant, ination are principles. has settled the confessions right against self incrimination constitutional had its birth in the abhorrence “doubtless -by inquisitorial torture which confessions coerced regarded England were alike in and America.” history, p. language, R. L. 78. The as well as the C. ap- provision contemplates the constitutional plication prеssure external ren- inducement to involuntary. der a confession (of hope) influence which will “The exclude op- and not the must be mere external, confession person’s own eration of the accused mind.” R. L.C. p. (N. S.) *4 18 L. R. note.
See, also, 825, A. “The fear must have been caused outside pressure brought by to bear the accused not and p. imagination.”
his own 1 R. C. L. 557. (N. S.) 18 L. R. 830, A. note. See, also, say enough that “It is confession accurate by putting hope the accused or fear obtained not voluntary.” S.) (N. R. 811, 18 L. A. is admissible note. implies “сompel” force or violence and
Tbe word irresistibility. 12 O. J. in it the element has 223. p. this court Collins, 223 Mich. said: is pressure or coercion form of some “Unless would constitutional the defendant’s
used be invaded.” quoted approval: And keynote prohibition; “Compulsion ground inadmissible on the to render evidence produce defendant was compulsion appear must that such himself, it him of volition in the J. to rob matter.” C. used 566. p. of other* are cited in the ex-
A multitude cases (N. S.) 768-874, in 18 A. haustive note L. R. It that the com- is called. is clear which attention contemplated pulsion does Constitution places hope secret refer to or fear brewed inducing person’s to external forces mind, hope condition or fear. An abnormal mental such weight given to be not so induced affect the admissibility. does not affect its confession but (N. S.) L. R. A. gives of such no intimation the record case,
In this except that defendant the bare facts forces external keeper jail him out called was in wqs There no evidence examination. jail discipline showing which timid, of stern nor indication him, to overawe
would tend sufficient ex- there threat. veiled Was command or. involun- ..pressure his submission render ternal tary? ' *5 279 v. Coeder. position most extreme the author- is found in a dictum State v. Hor- ities consulted (153 1051). I Mo. have not ton, 657, 663 S. W. approves authority which this as a rule of found an law. counsel, arrest, man is under without “When standing speaking metaphorically, in the
and
shadow of
something.,
requires
policeman’s
club,
justify
in-
an
more substantial than silence
much
vasion
right not to be com-
of his constitutional
pelled
himself.”
to furnish
only
Being
did not over-
this declaration
dictum,
80).
(55
E. jail submits while confined a defendant ’“Where physical objection to a without *6 Michigan Reports. with, person, knowledge that such examination is for proving purpose disproving guilt the the crime his of such chаrged, evidence of result of the may be admitted the trial.” People
In 71 Mich. Glover, the 303, defendant, jail, physicians they the was notified that made prosecuting direction of at- torney’ voluntarily and he submitted and without objection. competent. was held In original case, this record recited defend- voluntarily, ant “submitted to such examination objection no thereto.” No further facts up stated, were but those set that the indicate ex- voluntary amination was held to have been because objection wаs made. People supra, asking In Collins, defendant, custody, put who was on the hands marks killing on deceased, the throat of for whose he had not a been‘arrested, held violation his con- right. stitutional People
In 209 Mich. this Sharac, 249, court said that the mere fact the defendant was under arrest did not constitute such duress as to exclude the tes- timony of his confession. involuntary
A is confession not because it is by questions (18 [N. S.] elicited 794), of officers L. R. A. personal and while defendant is under re- 795). S.] [N. L. R. straint A. personal
The constitutionаl is and is waived failure claim it. When is witness asked an incriminating question, competent the evidence is objection; People he makes unless Arnold, 40 S.) (N. 4 L. R. A. 1144, note. Mich. 710; may ignorant fact that a “The witness be of his privilege, gen- and that he is advised it,of seems v. Cobder. important, erally since it to be considered' everyone to know the law.” must be deemed said L. pp. E. C. Lilly’s suppress on motion to Doctor Both necessary testimony (which nor motion was neither opportu- conclusive) had and at trial defendant in- He nonе which to state the facts. disclosed nities objection sustaining compulsion. dicated testimony, the court said: the excluded anything, stated, “If said or idea is immaterial.” intention undisclosed *7 suggestion court the No was made to the that any contemplated questions other. disclosure than No was attitude. made defendant’s mental offer hint which would at external show condition Upon the facts, of defendant’s statement influence. knowing in he was to released that, situation was intelligence, being of hour, a half and normаl or the without hesitation assisted in objection. necessary “af- to make it more is What firmatively appear that he consented thereto”? incrimination self
The constitutional jealously guarded, it was not violated must be but the of the of at either admission bar, of exclu- of defendant result showing of state mind. sion of of defendant’s Doctor Hubbard 2. Norma mother and Wilson’s seven and to statements made Norma testified naming respectively, days, eight assault; after the mother her discovered as assailant. questioned girl’s took her her and condition, the the inquiry. con Defendant doctor, who also proper, complaint showing the fact of was cedes incompetent because were the details but contends proof having of lapse been there time, People bring the case within v. or fear threats 854); People Rep. Am. v. Gage, St. Mich. 271 People supra; Hicks, v. Mich. 86. and Glover, exception general recognizes court This applying complaints, regarding of as cases rule People upon young girls.- 125 Mich. Marrs, v. saults exception People Mich. 48. The Black, 376; supra: explained Hicks, rape exceptional have arisen, cases when “But parties charged, third have been allowed where was prosecutrix. with the detail conversations to People Gage, It allowed. 62 Mich. this was ground permitted the com- gestee, part prosecutrix plaint of the res was a of the testimony, of her as corroborative years, party outraged tender reason that and direct length was the for а of time that her silence consequence induced chastisement, of fears wrong. perpetrator This of the of the threats goes borders rule, to the extreme of case closely upon dangerous ground.” in no threats in this case to were there While y girl, age of the tender silence, duce extremel appreciation situation, lack of with her and that he told her was her uncle fact her assailant *8 excep any the furnished affair, one of not to tell complaint potent prevеnt as tional circumstances stranger or fear been threats from a as would have Delay making complaint, if ex of chastisement. weight merely goes plained, to the of the evidence testimony complaint inadmis not render and does supra. People Black, sible. gave no details of statement
The witnesses except had that defendant Norma, made to them delay make The did with her. had connection testimony incompetent. Corder. person testimony to whom com- to the as The plаint in conflict. Norma said first made was was story to Doctor Hubbard. Mrs. told the she first they went to Doctor that before testified Wilson merely had asked Norma office she Hubbard’s anything had to do with “she had whether boys,” Not named defendant. and that Norma had doctor, which was until the conversation with presence real character was the mother, of the The tes- Norma. of the. stated claimed assault Wilson, timony Hubbard Doctor of both Mrs. complaint. competent to show on at admissible Doctor Hubbard’s stand, ground. he took the Before least one other Mrs. defendant, on cross-examination counsel for intimation, injected record the into the Wilson, had obtained Norma, had cross-examination and on suggested statement, had Hubbard that Doctor her people were The assailant. as Norma’s defendant testimony. entitled to rebut University State had been sent 3. Norma hospital information, when The for examination. the notation list of witnesses in the filed, contained hospital.” University Be “physician State of the prosеcutor in on the moved to indorse trial the fore Dr. E. Andrews as S. the name formation under stated,,not oath, He described. witness he did Saturday the name before, know, until Norma. In physician had examined who of the the sound dis was within name dorsement ante, (People Tamosaitis, of the court cretion of discretion this 258), no abuse there was instance. presented of error other claims given and are not well consideration due
have been grounded. .
The conviction should be affirmed. North JJ., concurred with O. J. Sharpe, Fead, J. conviction should be set aside and Wiest, a new trial ordered. permitting was in error in Dr.
The court Hub- testify by to to the statement made to him bard girl, brought little when mother, office her days alleged repeti- several after the offense. Such previously tion of the accusation, to the made improper per- mother, was and should not have been mitted to serve as corroborative of the statements girl purpose court. That such permitted appears following from the instruction jury: testimony gave “The that Dr. Hubbard here like- merely wise is corroborative. The both those witnesses is corroborative in two re- spects, particularly if true, and as far as it tends story girl to corroborate the the stand, told as to the truth of her claim.” may, by
If such be declared the rule
then
child
many persons,
statements
be corroborated in
merely telling
court
each
court what the child
prevails.
said
them out of court. No such rule
years complains
The fact that a child of tender
repetitions
of sexual abuse
be shown, of wholly
complaint are
inadmissible. The first com-
plaint by
girl
was made to her mother. The
alleged
offense was
to have been committed on
August
complaint to
10th,
the mother was not made
days
until several
later and,
was too
therefore,
re-
part
gestae. to mote
be a
of the res
Tobin,
The court also in tes- was error the timony physician who examined the jail submitting testimony the at the and in such to jury. surrounding ex- The circumstances such dispute amination were and the result the examination was not admissible unless defendant voluntarily person submitted his to examination. jury permitted The not should have been consider the result of the examination it was unless found by jury voluntary to have been a submission permitted defendant. Defendant was to ex- why plain he submitted. The court instructed jury: Lilly,
“Now, the local. Dr. has doctor, testified that about examination and to the extent that respondent. found the disease exist in the His testimony would be corroborative to an if extent, testimony girl. true, only purpose can for “It be used no for Some other. criticism has been based means and methods which this examination was your for had. That is not at consideration all. That passed upon by is a matter to be the court and it passed upon the court. your you It is for admitted. consideration have reject you unless find it be false.” authority All holds an accused compelled to submit to such examination as was Michigan Reports. § 2, 16, in this case. This is because Art.
had provides: of this State Constitution person shall be criminal “No * * * against a witness himself.” case to be may, of consent and furnish course, An accused but, consents, unless he himself person made. of his cannot be Consent *11 protest predicated failure to or re- cannot be Ignorance right to fear under resist, sist. of may pris- confinement, of arrest and lead a distress passive, comply request oner to be or even to with a person to his to medical examination, exhibit with- protective provision out of the in the loss Constitu- enough to tion. was not show that .defendant was It prisoner protest a docile and failed to or resist. To lawful evi- constitute the result necessary voluntarily dence it was to show that he exposed person, willing or, least, at to be examined. No in this court State would assume power to order such an examination. It was ordered by magistrate England magistrate in damages doctor were later cast in for an assault. syllabus: quote the We magistrate right
“A has no to order an examina person prisoner. of a tion An examination pursuance men, medical in of such an order, person custody upon charge of a female, concеaling illegitimate the birth of her child con Agnew an assault.” stitutes v. Jobson, 13 Cox’s Cas. Cr. holding
That was a but well states the at.circuit common law. See Union R. Co. v. Botsford, Pacific (11 Sup. 1000). 141 U. S. 250 Ct.
In the case at bar a mere ministerial officer called physician power in a and assumed to exercise a People v. Corder. prisoner because the Mm, and, extend could court protest it seems to or.resistance, without submitted thought to disclose evidence' he volunteered be of an If an examination accused himself. parts private the result thereof can- affirmatively to his extends evidence unless be received appears that he consented thereto. supra, R. we Botsford, Co.
In Union Pacific find this: ‘ Cooley, right by Judge one’s ‘The ‘As well said complete
person munity: to be im- be said Cooley Torts, 29.”
to be let alone.’ on brought let alone but from Defendant was jailer subjected to be ex- medical his cell tending an effort discover amination guilt. to be to establish his Defendant was about evidently on bail and it was considered that released if the examinаtion was had it would have to made custody. he was in while holding directed to the
Our attention is *12 authority as Glover, Mich. examina- protection against being The of an re- tion. accused quired himself not furnish evidence was considered; presented in there the Case or Glover physician merely of that the relation The court held patient obtain, and, therefore, did not the testi- and mony physician of the did not fall within the rule of by plain privileged is This made communication. a opinion. of defendant in behalf the The brief physicians urged who the the Case Glover physicians, and the “became his the patient physician estab- became of relation was of that examination and “the result lished,” The Glover privileged.” was also claimed. Duress question authority upon us. before not is Case testimony, that said, It under defendant’s cannot voluntarily submitted an examination of he involuntarily person. At most he submitted. Sub- Voluntary no waiver. mission alone establishes involuntary may, never. submission, submission why permitted sub- to tell he Defendant was to do so even He have been allowed mitted. should by though contradicted his action and words. rape, involving charge in the books of Cases excep- victim, disease of the with one venereal re- a of last tion, no instance where court disclose having jurisdictions a constitution contain- sort, ing provision an examina- ours, like sanctioned a privates tion his con- of the accused without (110 Angeloff E. N. State, sent. 936), St. 361 Ohio exception, decision was is the and there the objection submission, based without and with a knowledge purpose. That case is satisfac- tory, reasoning, mentions no no constitu- contains ground objection urged provision, states tional any of cir- not disclose and does considered, showing the asserted submission. cumstances directly point. to cases State now turn We 405), charge W. Newcomb, 220 Mo. S. physical rape accused, examination of the was and a custody, magistrate. was ordered while was violation held that court protection It afforded the constitution. also the court: said was made to show that defendant effort “Some
voluntarily
person,
to this
consented
violation
apparent
simply
is
that he
think it
submitted
but we
thought
do
he
he was
so. When
because
custody
at the time in
considered
*13
attorney
very
prosecuting
crime; that the
for this
justice for
an order from the
this exami-
demanded
People
Corder.
private
that the sheriff took him
nation;
into a
room
purpose
strange
it is
examination,
thought
compelled
that the
he
was
to sub-
having voluntarily
mit.
It
idle
is
to talk
con-
person.
to
violation of
sented
this
As
rеad
we
’’
option
had
he
record,
matter.
point
again
The
considered in
Horton,
State v.
(153
1051,).
quote:
and, shadow in the policeman’s requires something of a club, justify much more substantial than silence to an in- right of his constitutional to vasion to furnish evidence himself.” Matsinger (Mo.), v. 180 S. 856, the State W. charge rape. with, prose intent was assault attorney physicians cuting sent to examine the ac if was cused discover afflicted a venereal apprised accused was not disease. The of his merely resist the еxamination and silent, physicians informed that were there when positively consenting instead of it, make thereto. Again court held the under obtained ’ was inadmissible. See, such an also, Height, Iowa, 650 N. W. Am. State Rep. 323); App. Akens, 25 Cal. St. People McCoy, 795); Rep. (143 (N. Pac. How. Pr. Y.) (2d Ed.), §212. on Arrest 216; Voorhees *14 in cases holdings
"We have decided to follow the merely involving the cases rape and not involving a of an accused, exhibiting of the foot measuring on the face marks, on arm or tattoo scars wound usually body exposed, requiring' portions like to stand and cases. prisoner up, aside, For the conviction set the reasons stated remanded new trial and granted, proper custody. J. JJ., Wiest, concurred with Clark,
Fellows J., Potter, J., concurred in the result. McDonald, did not sit.
ALDERDYCE ALDERDYCE. Collusion—Fraud—Sufficiency Proof Vacate 1. Divorce — Decree. for cross-bill bill for divorce and wife’s Where husband’s denying averments separate maintenance both contained sworn agree- collusion, signing collusive the husband denied his, ment, although signature closely resembles there was setting necessary showing of fraud to warrant an insufficient motion. ground on wife’s of collusion aside the decree on Appears Be- be 2. Same —Decree Will Denied Where Collusion Granted, Will Not be Vacated Where Collusion fore Appears After. decree, will appears When collusion the court divorce before" appear does not denied, but of collusion where fact regular, decree, proceedings are pleadings and before and the 297; divorce, see L. R. A. Collusion bar annotation as S.) 535; 2 (N. L. L. R. R. A. A.