Defendant was convicted of statutory rape, committed August 9 or 10, 1927, upon his niece, Norma Wilson, 7 years old. On August 17th, she was examined by a physician, Dr. M. S. Hubbard, and found to have gonorrhea. Defendant was arrested August 18th and remained in jail until about noon August 19th. An hour before his release, a relative called at the jail and told him that bail had been arranged and he would be released in about an hour. A half hour later, a physician, Doctor Lilly, appeared at the jail and examined defendant, and testified on the examination and trial that he had gonorrhea. Defendant claims that this examination was an invasion of his constitutional rights in that it compelled him to be a witness against himself.
Defendant's version of the incident was that Robert Fries, the deputy sheriff then in charge of *Page 276 the jail, called him from the cell block into the corridor, introduced him to Doctor Lilly and said: "Come for an examination;" Fries then went to the other end of the corridor, 10 or 12 feet away, and said and did nothing more; Doctor Lilly said: "I came here for an examination" or the equivalent; defendant exposed himself and the examination was made. There is nothing in the record to indicate fear, or reason for fear, threat, compulsion, promise or other inducement than as above stated. Before the trial, defendant made a motion to suppress the testimony of Doctor Lilly, and in the supporting affidavit made no statement of fact that his consent to the examination had not been free. The motion was overruled on the ground that the examination had been voluntary. Upon the trial, defendant's counsel objected to the testimony of Doctor Lilly, on the constitutional ground urged, and defendant was asked several questions (which were objected to and the objections sustained), the purport of which was whether he had wanted the examination, whether he knew it could not be had without his consent, why he did not object, whether he knew the purpose of it and the use that would be made of it, and why he submitted.
In the charge, the court instructed the jury that the means and methods of the examination were not for their consideration, and that they should not reject the doctor's testimony unless they found it to be false. Defendant, in his testimony, denied having gonorrhea, but produced no medical witnesses.
1. "No person shall be compelled in any criminal case to be a witness against himself, nor be deprived *Page 277 of life, liberty or property, without due process of law." Const. art. 2, § 16.
Whether such an examination as defendant had, if compulsory, would be a violation of this constitutional provision is in conflict, numerous authorities condemning it and numerous others holding that the prohibition extends only to oral testimony. 2 A.L.R. 1327, note; 28 L.R.A. 699, note; 32 L.R.A. (N.S.) 772, note; L.R.A. 1918B, 844, note; 16 C. J. p. 566.
However, this discussion will be confined to whether defendant's submission was voluntary. Upon this phase, the authorities on physical examination are not abundant, but the analogous law of confessions has settled the principles.
The constitutional right against self incrimination "doubtless had its birth in the abhorrence with which confessions coerced by inquisitorial torture were regarded alike in England and America." 8 R. C. L. p. 78. The history, as well as the language, of the constitutional provision contemplates an application of external pressure or inducement to render a confession involuntary.
"The influence (of hope) which will exclude the confession must be external, and not the mere operation of the accused person's own mind." 1 R. C. L. p. 554.
See, also, 18 L.R.A. (N.S.) 825, note.
"The fear must have been caused by outside pressure brought to bear upon the accused and not by his own imagination." 1 R. C. L. p. 557.
See, also, 18 L.R.A. (N.S.) 830, note.
"It is accurate enough to say that any confession not obtained by putting the accused in hope or fear *Page 278 is admissible or voluntary." 18 L.R.A. (N.S.) 811, note.
The word "compel" implies force or violence and has in it the element of irresistibility. 12 C. J. p. 223.
In People v. Collins, 223 Mich. 303, this court said:
"Unless some form of pressure or coercion is used the defendant's constitutional right would not be invaded."
And quoted with approval:
"Compulsion is the keynote of the prohibition; and to render evidence inadmissible on the ground that defendant was compelled to produce it against himself, it must appear that such compulsion was used to rob him of volition in the matter." 16 C.J. p. 566.
A multitude of other cases are cited in the exhaustive note in 18 L.R.A. (N.S.) 768-874, to which attention is called. It is clear that the compulsion contemplated by the Constitution does not refer to hope or fear brewed in the secret places of a person's mind, but to external forces inducing such hope or fear. An abnormal mental condition not so induced may affect the weight to be given a confession but does not affect its admissibility. 18 L.R.A. (N.S.) 789.
In this case, the record gives no intimation of such external forces except the bare facts that defendant was in jail and the keeper called him out for the examination. There was no evidence that defendant was timid, no showing of discipline in the jail which would tend to overawe him, nor indication of stern command or veiled threat. Was there sufficient external pressure to render his submission involuntary? *Page 279
The most extreme position in any of the authorities consulted is found in a dictum in State v. Horton, 247 Mo. 657, 663 (153 S.W. 1051). I have not found an authority which approves this as a rule of law.
"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."
Being only dictum, this declaration did not overrule State v.Jones, 153 Mo. 457 (55 S.W. 80). There the sheriff asked the prisoner to pull off his clothing so he could be examined for a bite on the leg. The sheriff's voice containing no tonal threat, the court held the submission voluntary.
In State v. Struble, 71 Iowa, 11 (32 N.W. 1), an examination in jail was held voluntary although the sheriff accompanied the physician, it not appearing that the sheriff said or did anything with respect to it or that defendant was compelled to submit.
In State v. Miller, 71 N.J. Law, 527 (60 A. 202), the county physician had the defendant removed to the upper part of the jail and divested of his clothes, but discovered only superficial wounds on the hands. The court held the submission voluntary because there was nothing to indicate that defendant objected to the removal of his clothing or the examination of his person.
In Angeloff v. State, 91 Ohio St. 361, 363 (110 N.E. 936), it was said:
"Where a defendant while confined in jail submits without objection to a physical examination of his *Page 280 person, with knowledge that such examination is for the purpose of proving or disproving his guilt of the crime charged, evidence of the result of such examination may be admitted in evidence upon the trial."
In People v. Glover, 71 Mich. 303, the defendant, in jail, was notified by the physicians that they made the examination by direction of the prosecuting attorney and he submitted voluntarily and without objection. The testimony was held competent. In this case, the original record recited that defendant "submitted to such examination voluntarily, and made no objection thereto." No further facts were stated, but those set up indicate that the examination was held to have been voluntary because no objection was made.
In People v. Collins, supra, asking a defendant, who was in custody, to put his hands on the marks on the throat of deceased, for whose killing he had been arrested, was held not a violation of his constitutional right.
In People v. Sharac, 209 Mich. 249, this court said that the mere fact the defendant was under arrest did not constitute such duress as to exclude the testimony of his confession.
A confession is not involuntary because it is elicited by questions of officers (18 L.R.A. [N. S.] 794), and while defendant is under personal restraint (18 L.R.A. [N. S.] 795).
The constitutional right is personal and is waived by failure to claim it. When a witness is asked an incriminating question, the evidence is competent unless he makes objection.People v. Arnold, 40 Mich. 710; 4 L.R.A. (N.S.) 1144, note.
"The fact that a witness may be ignorant of his privilege, and that he is not advised of it, seems generally *Page 281 not to be considered important, since it is said everyone must be deemed to know the law." 28 R. C. L. pp. 431, 432.
Both on the motion to suppress Doctor Lilly's testimony (which motion was neither necessary nor conclusive) and at the trial defendant had opportunities to state the facts. He disclosed none which indicated compulsion. In sustaining the objection to the excluded testimony, the court said:
"If he said anything, that may be stated, but his undisclosed intention or idea is immaterial."
No suggestion was made to the court that the questions contemplated any other disclosure than defendant's mental attitude. No offer was made to show any condition which would hint at external influence. Upon defendant's statement of facts, the situation was that, knowing he was to be released in a half hour, and being of normal intelligence, he assisted in the examination without hesitation or objection. What more is necessary to make it "affirmatively appear that he consented thereto"?
The constitutional right against self incrimination must be jealously guarded, but it was not violated at bar, either in admission of the testimony of the result of the examination of defendant or in exclusion of a showing of defendant's state of mind.
2. Norma Wilson's mother and Doctor Hubbard testified to statements made by Norma seven and eight days, respectively, after the assault, naming defendant as her assailant. The mother discovered the girl's condition, questioned her and took her to the doctor, who also made inquiry. Defendant concedes that showing the fact of complaint was proper, but contends the details were incompetent because of lapse of time, there having been no proof of *Page 282 threats or fear to bring the case within People v. Gage,62 Mich. 271 (4 Am. St. Rep. 854); People v. Glover, supra; andPeople v. Hicks, 98 Mich. 86.
This court recognizes an exception to the general rule regarding complaints, applying in cases of assaults upon young girls. People v. Marrs, 125 Mich. 376; People v. Black,231 Mich. 48. The exception is explained in People v. Hicks, supra:
"But exceptional cases have arisen, when rape was charged, where third parties have been allowed to detail conversations with the prosecutrix. In People v. Gage, 62 Mich. 271, this was allowed. It was not permitted upon the ground that the complaint of the prosecutrix was a part of the res gestæ, but as corroborative of her testimony, and for the reason that the party outraged was of tender years, and that her silence for a length of time was the direct consequence of fears of chastisement, induced by threats of the perpetrator of the wrong. This case goes to the extreme of the rule, and borders closely upon dangerous ground."
While there were no threats in this case to induce silence, the extremely tender age of the girl, with her lack of appreciation of the situation, the fact her assailant was her uncle and that he told her not to tell any one of the affair, furnished exceptional circumstances as potent to prevent complaint as would have been threats from a stranger or fear of chastisement. Delay in making complaint, if explained, merely goes to the weight of the evidence and does not render testimony of complaint inadmissible. People v. Black, supra.
The witnesses gave no details of the statement made to them by Norma, except that defendant had had connection with her. The delay did not make the testimony incompetent. *Page 283
The testimony as to the person to whom complaint was first made was in conflict. Norma said she first told the story to Doctor Hubbard. Mrs. Wilson testified that before they went to Doctor Hubbard's office she had merely asked Norma whether "she had had anything to do with any boys," and that Norma had named defendant. Not until the conversation with the doctor, which was in the presence of the mother, was the real character of the claimed assault stated by Norma. The testimony of both Mrs. Wilson and Doctor Hubbard was competent to show complaint.
Doctor Hubbard's testimony was admissible on at least one other ground. Before he took the stand, counsel for defendant, on cross-examination of Mrs. Wilson, had injected into the record the intimation, and on cross-examination of Norma, had obtained her statement, that Doctor Hubbard had suggested defendant as Norma's assailant. The people were entitled to rebut that testimony.
3. Norma had been sent to the University State hospital for examination. The information, when filed, contained in the list of witnesses the notation "physician of the University State hospital." Before trial the prosecutor moved to indorse on the information the name of Dr. S.E. Andrews as the witness described. He stated, not under oath, that he did not know, until the Saturday before, the name of the physician who had examined Norma. Indorsement of the name was within the sound discretion of the court (People v. Tamosaitis, ante, 258), and there was no abuse of discretion in this instance.
The other claims of error presented by defendant have been given due consideration and are not well grounded. *Page 284
The conviction should be affirmed.
NORTH and SHARPE, JJ., concurred with FEAD, C.J.