dissenting.
I consider this case to be one of the most important to come before this court in recent years, since it affects the person and constitutional rights of every citizen of this state. The majority opinion holds that where a person not concerned with the crime for which the defendant is on trial other than as the victim of gunfire in a bar room brawl has suffered a gunshot wound, he is subject to be seized by the state and his body again cut open to obtain the bullet placed there by the assailant.
My objections are on two grounds, one procedural and one substantive.
(1) This bullet lodged in the victim’s back approximately one inch from his spinal cord. The only attempt to obtain it by legal process was by a motion to produce by the defendant served on the state. No notice has been given to the citizen in whose body this bullet is located. He is unrepresented in the hearing which the majority opinion orders the court to hold. He is not a party to the case. The majority opinion correctly cites the applicability to criminal cases of Code § 38-801 (g) dealing with notices to produce, but such notice may compel production only of things in the possession, custody or control of another party to the litigation, in this case, of course, the state. Similar provisions of Code § 81A-134 apply only to civil actions. A victim or other witness is not a "party” to the crime. Code § 26-801. This witness is not in the "possession, custody or control” of the state which is the prosecutorial agency. The bullet is in the possession of the witness. The purpose of a motion to produce is to assure that the storehouse of facts available does not remain within the exclusive possession of one of the adversarial parties. "To this date, there has been no holding that Brady [Brady v. Maryland, 373 U. S. 83] confers on the defense a right to receive information or evidence greater than that possessed by the prosecution, and we decline to so hold now.” Calley v. Callaway, 519 *696F2d 184, 224.
Spence v. State, 238 Ga. 399 is not relevant to this point. Spence held that a jury foreman was not ineligible to serve because he was the father of a police officer who investigated the case. Likewise, in Prysock v. State, 44 Ga. App. 229 (161 SE 153) a witness wounded in the same assault as the victim for whose death the defendant was on trial was held not a prosecutor so as to make a relative ineligible to serve on the jury. Ethridge v. State, 164 Ga. 53 (2) (137 SE 784), does hold that one who by affidavit instigates the prosecution on which the indictment is based is a prosecutor for jury selection purposes so as to render a prospective related relative ineligible as a juror. Such a situation does not appear in this record; even if it did we cannot infer from this fact that the witness, who is at most a prosecuting witness, loses his Fourth Amendment rights to the privacy of his own body. Nor can we infer that the witness is "in the custody or possession of’ the state which is required before he or the contents of his body is "produced.” Nor can we infer that the trial is a trial of the defendant by the witness; it is rather a proceeding by the state to determine if the defendant has violated its laws.
It is almost unheard of in the annals of law to seek evidence from the body of a victim. In State v. Smith, 260 S2d 489, 491 (Fla.), where a physical examination of prosecuting witnesses was sought, the court, refusing the request held: "No right is held more sacred, or is more carefully guarded, by the common law, than the right of an individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Union Pacific Railroad Company v. Botsford, 141 U. S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891). The common law does not authorize a court to require the physical examination of a witness, because discovery in criminal cases was unknown to the common law.” That there is no statutory right of discovery in Georgia (except the constitutional Brady rights of the defendant to material in the files of the state) has been reiterated by this court on numerous occasions. Godwin v. State, 133 Ga. App. 397 (211 SE2d 7); Martin v. State, 135 Ga. App. 4 (2) (217 SE2d *697312); Julian v. State, 134 Ga. App. 592 (3) (215 SE2d 496). "There is no law in this state for discovery per se in criminal cases. . .’’Houser v. State, 234 Ga. 209 (11) (214 SE2d 893).
The majority opinion states that "We view the Brown case as controlling here and conclude that the dismissal of Haynie’s motion to produce was erroneous.” Brown v. State, 238 Ga. 98 (231 SE2d 65) involved a motion by the defendant to produce twelve documents located in the district attorney’s files, and which were accordingly in the possession and custody of the state and available to it in working up its case against the defendant. I do not imagine that the state would be obligated to go out and retrieve these same documents for the use of the defendant if they were not in its possession, and no court has ever so held.
(2) Where the property sought to be produced lies within the body of the victim of the crime the question leaves the storehouse of information issue and turns upon the Fourth Amendment rights of the individual citizen. I have been unable to find a case, and none has been cited, holding that a witness to a crime may be compelled by either the state or the defendant to undergo procedures involving the cutting open of his flesh and the invasion of his person in order to obtain evidence either for or against the state. If the defendant has this right, of course, the state also has it. Never since the Merchant of Venice does there appear to be a case where the cutting open of a person not directly accused of guilt to obtain a pound of flesh was sanctioned, and even that involved, as does Creamer v. State, 229 Ga. 511 (192 SE2d 350), one of the parties litigant. Surely this cannot be done without a search warrant? "The right to object to an unreasonable search and seizure is a privilege which is personal to those whose rights have been infringed...” Dutton v. State, 228 Ga. 850, 851 (188 SE2d 794). The holding in the case at bar is therefore that the victim of crime automatically loses his Fourth Amendment rights. And even if there were a warrant, which there is not, can the state compel me to be anesthetized and brought to the operating table to obtain evidence for or against a defendant? The forcible procurement of evidence from the body of the citizen *698constitutes an unreasonable search and seizure under Fourth Amendment standards. "The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511(97 ALR2d 1277, 1282).I would be distressed to find Georgia the first state ever to sanction it, and especially at a hearing where the witness is not even represented.
It follows that a hearing of the type envisioned by the majority opinion here is also violative of the due process clauses of the State and Federal Constitutions. In Rochin v. California, 342 U. S. 165, it was held grounds for suppression that the court seized a defendant who, on arrival of the police, swallowed two capsules, and was forcibly administered an emetic for their retrieval. "The Due Process Clause places upon this Court the duty of exercising a judgment, within the narrow confines of judicial power in reviewing State convictions, upon interests of society pushing in opposite directions. . . It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach.” Id., pp. 171, 173.
I must respectfully dissent.
I am authorized to state that Judge Marshall and Judge McMurray join in this dissent.