dissenting:
An analysis of the majority opinion reveals such statements as “the statute [under consideration] is the establishing of procedures for pleading and trying the insanity issue.” It is precisely because the statute does govern trials that I object to the stamp of approval given to the trial in this case wherein the people placed before the jury — in one package — five psychiatrists. Three — *477Drs. McDonald, Schapire and Trail — -examined Early pursuant to authority in the statute which permitted them to give their testimony only by virtue thereof and limited their use of admissions and statements and other evidence as prescribed in the statute. C.R.S. ’53, 39-8-2. Two psychiatrists — Drs. Hilton and Rymer — who obtained similar information under no authority that I can find in the law, gave in detail precisely the same type of testimony without benefit of the statute and without the restrictions therein.
The majority opinion skirts widely the fundamental -question raised in this case: By and under what authority, either through the voluntary relationships of physician to patient or by operation of law, were these psychiatrists permitted to make such a personal examination and probe into the mind of this defendant? They could not have examined his pockets; they could not have gone to his room and searched it; they could not have violated his person. How then can they examine into his mind?
Let us see who was present at the time of the examination and by what authority. There were a Mr. McCauley, district attorney’s investigator; Mr. Carleno, deputy district attorney; Mr. O’Kane, the district attorney, and the two psychiatrists. The district attorney was there as the elected representative of the People under provisions of law and his powers and duties are prescribed by law. He cannot function outside the statute. This is true of his investigators and deputies. This is true of the sheriffs; this is true of the police. Who were the doctors? Were they investigators? Police officers? Deputy district attorneys? Jail guards? Who gave them the right to question?
The three psychiatrists appointed later by the court under authority of law had the right to question because the statute says:
“It shall be permissible in any such observation and examination for said physicians to use confessions and *478admissions of the defendant, and any other evidence as to the facts and circumstances surrounding the commission of the crime, for the purpose of questioning the defendant thereto to aid them in forming an opinion as to the sanity or insanity of the defendant; * * *” (Emphasis suppplied.)
So the same three psychiatrists called by the state gave their testimony by reason of this permission. But the other two required no such permission. I read the end result of the ruling herein to be that all of the things obtained by the psychiatrists in the post-arrest examination — the statements and admissions and the other evidence of facts and circumstances surrounding the commission of the offense — to be just as available without the aid of a statute as with it.
A further reading of the statute shows that in the same sentence, separated only by a semicolon, it is provided that when the psychiatrists conduct the examination by virtue of the statute, “* * * it shall also be permissible for them to administer or cause to be administered to the defendant sodium amythal, sodium pentothal, metrazol and like drugs, and to use or cause to be used on the defendant the polygraph, as an aid to them in forming an opinion as to the insanity or sanity of the defendant; * * *.)” (Emphasis supplied.)
Would the law now be that any psychiatrist making an examination before plea is permitted to use drugs, and to conduct that type éxamination? It will be noted that the two portions of the statute are identical — the first part that it shall be permissible in the observation and examination to use admissions arid other evidence; in the second that it is permissible to use drugs. Now, of course, drugs were not used in this case, so the precise question is not before us, but the statute is. If these doctors were permitted, without aid of statutory law, to use confessions and admissions and other evidence to aid them in their opinion-testimony, then aren’t they permitted, to use other means as well? ..i
*479A further examination of the statute used to “govern the trial” reveals:
“However, no substantive evidence acquired directly or indirectly for the first time as the result of any such observation and examination shall be admissible on the issue of guilt of the crime charged if the defendant is put to trial on that issue; and any evidence obtained from such observation and examination is admissible only on the trial of the issue of insanity, except when offered on the trial of the issue of guilt of a murder charge to rebut evidence of insanity offered by the defendant to reduce the degree of murder; and in any such case said evidence may be considered by the jury only as constituting part of the basis of the opinion of the physician as to the sanity or insanity of the defendant; and the jury shall be so instructed by the court upon the request of either party.” (Emphasis supplied.)
It is to be noted that the five state psychiatrists were presented to the jury in sequence. Their testimony was virtually identical except for describing the place where the examination was held in each instance. All five testified that they used his history, his statements outlining and detailing the crime, and other information available from the defendant baring his very soul. While it is true that the testimony was monotonously repetitious and cumulative, the fact that no discernible difference appears in their testimony leads to the inescapable conclusion that two of the doctors either acted under no authority in the law or three of the doctors did not need the statute, so far as their examination of defendant was concerned. If this is true, then the statute has been rendered meaningless. Since all five testified exactly alike, could the district attorney have used only Drs. Hilton and Rymer? And if he did, or if district attorneys follow such a course in the future, could one request cautionary instructions accorded the defendant by the statute if the psychiatrists were not employed pursuant to the statute? Could' evidence be obtained for the first *480time through this method of examination and be used at the trial when the statute says that evidence so obtained cannot be used? These are the questions that remain unanswered, but they are questions that will haunt the courts in future cases if prosecuting attorneys decide to employ all of the state’s psychiatrists- — ■ maybe four — maybe six — before arraignment, and not be concerned one whit with the examination as prescribed and restricted by the statute.
I question the accuracy of the statement in the opinion that the underlying basis of defendant’s objection is that the examination of the kind here conducted deprived him of a “tactical advantage.” That certainly is a new concept in viewing the constitutional rights of a prisoner. Every constitutional safeguard that I know of, if violated, would deprive one of a tactical advantage. As a matter of fact the constitutional safeguards are intended to give the defendant some advantage over and protection from the oppressive tactics which otherwise might be used by the strong arm of the law. As I view it, the underlying basis of defendant’s objection is that he was deprived of his constitutional rights. That is what he said in his assignment of error and what he said to the trial court. And astoundingly the trial court answered his constitutional objection thusly:
“THE COURT: All right. The Court, however, will make one correction in the motion. The Court will treat this motion as under the Fourteenth Amendment rather than the Fifth, since when you make an allegation under the Fifth in a state court the Court should treat it as an allegation under the Fourteenth. * * * This constitutes reversible error in my opinion. I am of the frank opinion that there is much to be said for the defendant’s position in this case and I want the record to clearly reflect that, although I will put in writing my opinion at a later time. * * * It is, as I say again, repugnant to me for a person’s mind to be explored — as much as for his stomach to be explored, as pointed out in one United States Supreme *481Court case — prior to the time of arraignment and plea, especially where the intent of the exploration is to foreclose what may appear to be a legitimate defense — which it may or may not depending upon the facts and circumstances.
“I am of the opinion that due process demands that the People’s Attorney in cases of this kind follow very closely the strict letter of the statute and that the examination to be held only by order of Court in state hospitals. However, I am frank to admit that I find nothing in the law to support such a conclusion, that the cases which I have found have dealt with collateral and relative matters and do not bear specifically on this question of examining into the mind of a defendant at this particular time. I also wish to point out for the record that this is not a casual examination such as a lay witness might have made. This is not an examination of someone who was heretofore familiar with the defendant’s particular conduct, his behavior patterns, which might be the basis for an opinion as to his sanity. The Court is of the opinion that this particular examination by Dr. Rymer and Dr. Hilton was a direct attempt to gain for the first time some understanding and insight into the question of the defendant’s sanity prior to the time that he entered such a plea.
“I am frank to say, and I say this just simply as a personal expression, that if I were sitting as an appellate judge reviewing such a matter I would not hesitate to declare same a basic infringement of constitutional rights. * *
The trial court put his finger on the crux of this constitutional question when he said “this particular examination by Dr. Rymer and Dr. Hilton was a direct attempt to gain for the first time some understanding and insight into the question of the defendant’s sanity * * *.” I would add that inquiry into this area is not open to the state until the question is raised by the defendant. Put another way, the district attorney and the police officers, *482pursuant to their lawful authority, may examine a defendant in the course of an investigation to determine whether a crime has been committed against the people of the State of Colorado. In pursuit of that objective they do have all of the authority which'we associate with the police powers. The doctors here were on no such inquiry, had no such authority, and could not proceed as agents of the state possessing the powers of law enforcement officers.
The query, by what authority did these doctors ask the defendant a single question or extract from him an answer, is brushed aside by the statement that the defendant had had psychiatric examinations before while in prison, and that he didn’t object' or stand mute, or that he was not being forced or compelled to answer. How about one in the toils of the law for the first time? There is grave doubt that he was told who the examining physicians were, and he certainly was not told the purpose of their presence, how the statements would be used, either for or against him. He was not told that-he need not answer, and he was not told anything which even a “rookie” police officer knows is preliminary to any examination conducted by police authorities. Here is what the doctors said occurred -at the examination:
Testimony of Dr. Hilton:
“Q. Then you started in with questioning, is that right? A. That’s right. Q. And nobody explained the purpose of your visit there then, did they, if that was the sum and substance of .the conversation? A. That we wanted to question him about what had happened. Q. Yes, but that was the sum and substance of what you told him you were there for, or McCauley told him you were there for? A. That’s right.” (Emphasis supplied.)
Testimony of Dr. Rymer:
“Q. And you say that you introduced yourselves or McCauley introduced you, by name? And you say you told him the purpose that you were there for? A. To talk to him, yes, sir. Q. Well, I want to know just what you *483said. What did you tell him you came there for? A. Told him we wanted to talk to him. Q. That is what you told him? A. Yes. Q. You told him you wanted to examine him? Did you tell him the purpose of that examination? Did you tell him you wanted to examine him to see if he was sane or insane? Did you tell him that? A. Not in those words. Q. And neither did Dr. Hilton, did he, in your presence? A. Dr. Hilton will be here to testify * * *. Q. In your presence? A. As far as I know, no. Q. And you confined your examination mostly to what occurred the night before, or the afternoon previous, didn’t you? A. No, we covered an awful lot of territory.” (Emphasis supplied.)
The defendant’s testimony is:
“Then they carried me on back, walked me on back, to the back room and we went in there and talked mainly about the killings, that happened the night before.' For an hour or an hour and a half they went over that and then Barney came in and started questioning me some more about the killing, and then just as the thing was breaking up, the talk, why one of these gentlemen ask me to draw them a couple of pictures (Emphasis supplied.)
To put it bluntly, these two doctors were there with no restrictions as to the privilege between patient and physician; they were not bound by the rules that govern constitutional and statutory officers, or as would appear by the ethical standards of their profession. •
Another statement in the majority opinion challenges attention, namely, that because there is no expressed prohibition against employment of psychiatrists by the state, the statute, therefore, does not operate to exclude the private employment of psychiatrists-. How does- the state, that may not buy a pencil without authority in the law, have the right to employ a psychiatrist to examine the defendant without such authority? In the prosecution of criminal offenses, the power of the state must be exercised within the circumscribed limits pre*484scribed by constitutional procedures. It is my understanding that the reason for the statute under consideration was to give the state authority it did not previously possess in circumstances where a person has waived certain of his constitutional rights in raising the issue of his sanity at the trial. A statute permits the examination of a plaintiff by a physician in a civil damage action when the person himself puts the issue of his health and of the extent of his injuries before the court. If the state can now, or always could, employ psychiatrists privately, then why the statute? And why the limitations and safeguards set up in the statute in connection with the information extracted from a defendant? I believe the common understanding of the law is that once the legislature has spoken on the question by enacting a statute in the field it becomes the authority. Otherwise why set up standards and procedures on the one hand and on the other hand hold by judicial pronouncement that they may be followed, but that other, different standards also may be followed if it suits the purpose at hand?
We have, it seems to me, a doctrine announced in this case whereby the state has some kind of inherent or undefined power by virtue of its sovereignty to do an act or adopt a procedure; that although there is a law on the subject permitting the act or conduct and prescribing the manner of its exercise, the state can employ the method prescribed, or adopt another, or both, and offer in evidence the entire result — obtained under both procedures — without distinction. Extending such doctrine to the area of property rights, one could argue that although the constitution prohibits the taking of property for public use without compensation, and although there are statutes on eminent domain laying the ground rules under which rights to condemn property may be exercised, such laws do not operate to exclude the acquisition of property by other means so long as the right to compensation is not violated.