A warrant was issued charging defendant with receiving and concealing stolen property of over $100, MCL 750.535; MSA 28.803. At preliminary examination, thе prosecution moved to compel defendant to submit handwriting exemplars, which motion the district judge granted. Defendant aрplied for and was granted leave to appeal by the Oakland County Circuit Court. After reviewing briefs submitted by both parties, the cirсuit court reversed the district court order. From the circuit court ruling the people appeal by leave granted.
Defendant had contended, in circuit court, that a defendant cannot be compelled to give handwriting exemplars under Michigan law based upon holdings in
People v Sturman,
The United States Supreme Court in
Gilbert v California, 388
US 263;
"But the Government’s petition fоr the order to compel production stated: 'Such exemplars will be used solely as a standard of comparison in order to determine whether the witness is the author of certain writings.’ If the Government should seek more than the physical characteristics of the witness’ handwriting — if, for example, it should seek to obtain written answers to incriminating questions or a signature on an incriminating statement — then, of course, the witness could assert his Fifth Amendment privilege against compulsory self-incrimination.” Mara, supra at 22.
Gilbert and Mara clearly indicate that there is no violation of a defendant’s Fifth Amendment privilege against self-incrimination when he is compelled to provide a handwriting exemplar to be used for comparison purposes.
Though the law is clear that the United States Constitution does not prohibit the requiring of handwriting exemplars, defendant’s position is that Michigan law forbids compelling of handwriting exemplars. Indeed, a cursory reading of Sturman would tend to support this contention. There the Michigan Supreme Court, after citing 1915 CL 12539, which was a predeсessor statute to MCL 600.2144; MSA 27A.2144, stated in dicta that:
"Quite likely it would have been error to compel the witness, against objection, to mаke the signatures he did.” Sturman, supra at 289.
*191 MCL 600.2144; MSA 27A.2144 concerns admission into evidence of the handwriting of any person. It states:
"Whenever in any suit or proсeeding in any of the courts of this state, it shall be necessary or proper to prove the signature or the handwriting of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimеn or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one admissible in evidence or cоnnected with the case or not. If such paper is not one admissible in evidence for some other purpose, or сonnected with the case, it shall not be admissible in evidence for the purpose of comparison unless it was made bеfore the controversy arose concerning which such suit or proceeding was brought.”
It is clear that in 1920 when the Michigan Suprеme Court decided Sturman a handwriting exemplar of the type involved in this case was not admissible under the predecessor statute to MCL 600.2144; MSA 27A.2144. While it is true that MCL 600.2144; MSA 27A.2144 remains in force, essentially in the same form as it was in 1920, it does not alone state the law in this area. In 1927, MCL 768.25; MSA 28.1048 was enacted. This section states:
"Whenever in the trial of any criminal case it shall be necessary or proper to provе the signature of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfactiоn of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one in evidence or connected with the case or not.”
*192
It is this statute, rather than MCL 600.2144; MSA 27A.2144, that governs admission of handwriting specimens in criminal proceedings. The fact that specimens of handwriting were obtained after defendant’s arrest does not offend that statute.
People v Harris,
"Defendant for the first time on appeal raises the question of the prohibition provided in CLS 1961, § 600.2144 (Stat Ann 1962 Rev § 27A.2144) against using a sample signature created after the controversy concerning which the сriminal proceedings were brought. It appears that, although objection was made to admission of the evidence, it wаs predicated on a violation of Fifth and Sixth Amendment privileges and not as a violation of the statute. This Court need not pass on the controversy as to whether the aforementioned section of the revised judicature act of 1963 appliеs only to civil matters. People v Sturman (1920),209 Mich 284 , indicates that the signatures may not be compelled, but may be used if voluntarily given. No objection was madе either in Sturman or in the instant case predicated on this statute. Sturman holds that by not interposing an objection based on this statute to have the paper containing the picture excluded for comparison purposes, a defendant waives the benefit of same.
"Defendant’s conviction is affirmed.” Smogoleski, supra at 700-701.
The Court clearly held that becаuse the statute had not been brought into play, Gilbert v California, supra, permitted the handwriting exemplar to be introduced into evidence and affirmed defendant’s conviction. Thus, in light of Harris, Smo *193 goleski, rather than supporting defendant’s position, must be interpreted as sustaining the people’s position.
We find the handwriting exemplar requested by the people to be non-communicative in nature and that this compulsion does not violate the Fifth Amendment.
Holt v United States,
The circuit court’s order reversing and setting aside the order of the district court is vacated. The people may require defendant to submit handwriting exemplars as ordered by the district court.
Reversed.