On Motion for Rehearing.
Nichols, Justice.The contention has been made that the defendant’s Sixth Amendment rights to due process have been violated and that such violation (right to counsel while the physician examined him under court order) vitiated the later judgment ordering the removal of the bullet.
On September 1st, at the original hearing where counsel was appointed until the defendant’s own counsel arrived to represent him, the trial court ordered that until the arrival of defendant’s own counsel no questioning, no examination and no interrogation would take place out of the presence of the temporarily appointed counsel. The order on the September 7th hearing, entered on September 8th, did not provide for counsel to be present. On this same date the trial court ordered that a named doctor be permitted to visit the defendant privately, and under same conditions under which the defendant consulted with his attorneys. At the hearing on September 19th, no questions as to the defendant’s Sixth Amendment rights were raised, although he was represented by counsel at this, as well as all prior hearings. Accordingly, this question is not properly before the court. See Mitchum v. Stynchcombe. 227 Ga. 226 (3) (179 SE2d 919); Brackett v. State, 227 Ga. 493 (2) (181 SE2d 380); Ford v. Herbermann, 227 Ga. 751 (183 SE2d 204).
However, the examination by the physicians appointed by the court was not such an interrogation as to come within the mandate of decisions exemplified by Powell v. Alabama, 287 U. S. 45 (53 SC 55, 77 LE 158, 84 ALR 527) and United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149).
No question concerning the defendant’s guilt or innocence of the crime was asked or answered, and no evidence of an *527incriminating nature was obtained as a result of such examination. Evidence of the defendant having previously been administered a local anesthetic was obtained, as well as a consent to the examination, but this evidence was not incriminating in nature.
The examination by the physician would fall within the exceptions laid by the U. S. Supreme Court in Wade, supra, where it is not necessary to have an attorney present. As was there held (p. 227), the Sixth Amendment rights do not apply to "systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.”
The holding in Wade, supra, and similar cases precludes the use of tainted evidence, but does not preclude the defendant from being tried upon legally obtained evidence.
While the bullet may incriminate the defendant when removed, the question as to its safe removal is a distinct issue which in no wise incriminates him, and the absence of counsel during the examination to determine if it could be safely removed did not violate any Sixth Amendment rights.
The physician who made the examination was subjected to cross examination and the defendant was not precluded from presenting his own expert testimony; and even if such question had been properly presented to this court for decision, this would not require a reversal.
*528 Rehearing denied.
All the Justices concur, except Gunter, J., who dissents.Gunter, Justice, dissenting. My original dissenting opinion treated only the substantive issue in this case: Whether the State can or can not compel a surgical search and seizure operation upon and into the physical body of one accused of a crime in order to seize evidence impacted in the physical body that may be relevant to the crime alleged to have been committed. I gave no consideration in that dissent to a lack of procedural due process.
On motion for rehearing the movant has brought this additional contention plainly and clearly to the attention of this court. Therefore, it must be honestly dealt with.
I am of the opinion that the surgical search and seizure order of the trial court entered on September 19, 1972, is not only in violation of the substantive law of Georgia, but I am also convinced that it is infected with a lack of procedural due process in violation of the Georgia Constitution and the Federal Constitution.
On September 1, 1972, the accused was brought before the trial judge who informed him that two warrants for murder had been issued against him; the accused was advised of his constitutional rights; an attorney was appointed to represent him. Page 7 of the transcript of that hearing reveals that the court advised Mr. McDonald, the attorney appointed for the accused, as follows: "Mr. McDonald, I want the sheriff to serve him [the accused] with a copy of search warrant that I have issued, setting forth a show cause, on the 7th of September, at 9:30 a.m., as to why I should not have an inquiry made by a group of three surgeons.” And page 8 of the transcript of that hearing reveals that it was concluded on the following note: "... I [the trial judge] am directing the sheriff that no questioning, no examination, no interrogation will take place out of the presence of Mr. Duard McDonald. Mr. McDonald: Yes, Sir. The Court: All right.” (End of transcript of hearing).
On September 7, 1972, the attorneys for the accused filed a motion with the court asking that "all persons be en*529joined and restrained from any examination of the accused’s body over the accused’s objection, and that any and all persons be enjoined and restrained from any intrusions, of whatsoever nature, into the accused’s body.”
On September 8, 1972, the trial judge entered an order, in part, as follows: "Therefore, it is ordered that James Edward Creamer submit to an examination and X-ray under the control, direction and supervision of the Chief of Staff of Surgery, Cobb General Hospital, S. G. Pausa, M.D., forthwith, and that a report be made to the court as to whether the removal of the bullet can be effected without endangering his life and that a report of the procedures necessary to effect such removal be forthwith made to the court, all at the expense of Cobb County; that the district attorney make proper return of the execution of this order as provided for search warrants.” It is readily seen that no provision was made in this order for the presence of counsel for the accused at such examination.
Prior to the entry of the order of September 8th, the transcript of a hearing held on September 7th reveals that Mr. Duard McDonald stated the following to the court: "Your Honor, it would be our position that you are compelling this man, over his objection, to perform an act from which evidence and, by definition, testimony, is obtained that could be incriminating, and that the compelling of his doing the act of entering into the X-ray is, in and of itself, a violation of his privilege against incrimination.” (T., p. 27). This September 7th transcript also shows that Mr. McDonald directed the following to the court: "May I impose upon the court one more thing, Your Honor? Back in the hearing last Friday, the court said that until such time, I am directing the sheriff that no questioning, no examination, no interrogation will take place out of the presence of Mr. Duard McDonald. We respectfully ask the court [to] order that there be no interrogation, inspection or anything of that nature with Mr. Creamer by any law enforcement officer from anywhere outside the presence of either Mr. Rubin or somebody from my office. This has been done, Sir, *530is the reason I have requested it.” That same transcript at p. 32 also shows that Mr. McDonald stated to the court that he would represent the accused until he reported further to the court.
Sometime between September 8th and September 19th the physicians appointed by the court examined the accused physically and by X-ray. It appears from the transcript that the examination was conducted on September 13th because Dr. Session testified on September 19th that it was made at his office "last Wednesday.” The physician testified that he interviewed the accused, and examined him orally and by X-ray. The physician also testified that the only persons present were the accused, the jailer, another gentleman from Cobb County, the physician’s nurse, and the physician. The physician testified that no attorneys were present during the examination. On p. 7 of that transcript the physician also testified as follows: "He [the accused] was present in my office against his objections, but he submitted to my examination willingly and voluntarily.”
It is now well settled that procedural due process under the Georgia Constitution and the Federal Constitution requires that one accused of a crime be allowed the "right to counsel” at or after the time that adversary judicial proceedings have been initiated against him.
In the recent case of Kirby v. Illinois, 406 U. S. 682, 688 (92 SC 1877, 32 LE2d 411) (1972) Mr. Justice Stewart, speaking for the Supreme Court of the United States, said: "In a line of constitutional cases in this court, stemming back to the court’s landmark opinion in Powell v. Alabama, 287 U. S. 45 [supra], it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. [Cit.]”
Mr. Justice Stewart in that case continued: "This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment, and the court has recently held that it exists *531also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
Mr. Chief Justice Burger in a concurring opinion in that case (p. 291) said: “I agree that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a 'criminal prosecution’.”
The facts heretofore related convinced me that "adversary judicial proceedings” were initiated against the accused in the case at bar on September 1, 1972; his constitutional right to counsel attached at that time and the trial court recognized that constitutional right by appointing counsel for him; the interrogation and physical examination of the accused by a court-appointed physician took place on or about September 13, 1972, without benefit of counsel being present; such interrogation and examination by the physician was over the objection of the accused and over the objection by the attorney for the accused and all of this adds up to a denial of the right to counsel and a denial of procedural due process.
The interrogation and physical examination of the accused by the physician on or about September 13, 1972, was a vital link in determining the reasonableness or unreasonableness of the surgical search and seizure order issued by the court on September 19, 1972. Without the September 13th interrogation and examination there would have been no basis for the reasonableness of the September 19th order. The accused was entitled to have his counsel present for that September 13th interrogation and examination, and, to my mind, he was also entitled to have a.physician of his own choosing present for that interrogation and examination.
Therefore, in addition to my position on the substantive *532law of Georgia on this subject set forth in my original dissent, I would grant the motion to stay because this record shows that the accused has not been accorded procedural due process.
I continue to dissent.