Mundy, In re

• Citation: 97 N.H. 239,85 A.2d 371
• Parties: In re MUNDY et al.
• Decision Date: 02 January 1952
• Court: Supreme Court of New Hampshire

Page 371

85 A.2d 371

97 N.H. 239

In re MUNDY et al.

Supreme Court of New Hampshire.

Jan. 2, 1952.

Gordon M. Tiffany, Atty. Gen., and Lindsey R. Brigham, Exeter (Mr. Tiffany orally), for the State.

Upton, Sanders & Upton and William D. Tribble, all of Concord (Robert W. Upton, Concord, orally), for defendants.

BLANDIN, Justice.

It is established by the weight of authority elsewhere and by our unanimous opinion in this State that the proceedings under the act here in question, Laws 1949, c. 314, are civil and not criminal in nature and that they offend no provision of criminal due process. See In re Moulton, 96 N.H. 370, 372-373, 374, 77 A.2d 26, and authorities cited, wherein we held this act constitutional on its face--at least so far as the Constitutionality of the provisions now questioned are concerned. It follows that the defendants' exceptions so far as they rest on the assumption that this is a criminal matter are without merit. Kemmerer v. Benson, 6 Cir., 165 F.2d 702. Nor do we think the examining board here can be viewed as an administrative agency as the defendants also contend. The Legislature has delegated none of its powers to this board nor can it make any decision binding on others or final in any sense. Its members act only to aid the court by their special knowledge as do any expert witnesses.

The defendants' main objection here is that the court, under § 5, c. 314, Laws 1949 which permits it to do so, received hearsay evidence in the form of the report of the examining board. This in turn was based to some extent upon probation and police reports which under § 4, subd. II, the board was authorized to examine for the purpose of obtaining information from them. The defendants say this offends the due process clauses of both the State and Federal Constitutions, which are concededly substantially the same. N.H.Const. Pt. 1, Arts. XIV, XV; U.S.Const. Amend. XIV. This report consisted of (1) findings based on hearsay from different sources, and (2) the conclusions drawn from them and from personal examinations of the defendants made by the board that the defendants were sexual psychopaths. The hearsay sources referred to were probation and police reports and correspondence with the father of one of the defendants. These reports so far as material consisted of statements of the defendants and of the juveniles involved. The psychiatrist who testified at the hearing before the court was a member of the board and he was cross-examined at will by the defendants, who were present at the hearing, through their counsel. Prior to calling the expert and pursuant to § 5, subd. II of c. 314 supra, which provides that the County Soliciter 'shall' subpoena witnesses 'if necessary, in support of the report', one of the juveniles was called to the stand by the State. This boy was present when all the acts upon which the expert's opinion was in part founded allegedly took place. After a conference at the Bench, the nature of which does not appear, he was excused and thereafter was not asked to testify although available to both sides. It appeared from the expert's testimony that his opinion rested to a substantial degree on his own examination of the defendants as well as on the reports.

That an expert may give an opinion under some circumstances based in part on hearsay in both civil and criminal cases is well established in this State. Lebrun v. Boston and Maine Railroad, 83 N.H. 293, 301, 142 A. 128 and cases cites; Boulanger v. McQuestion & Lewis, 79 N.H. 175, 106 A. 492; State v. Sturtevant, 96 N.H. 99, 104, 70 A.2d 909. In these cases the hearsay consisted of alleged statements of the party or matter contained in scientific articles or books. Aside from these examples, the law abounds in exceptions to the hearsay rule. It is admissible before administrative bodies here and elsewhere. Goldsmith v. Kingsford, 92 N.H. 442, 444, 32 A.2d 810; National Labor Relations Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, 873. See also Laws 1949, c. 278, § 65-g which permits hearsay evidence in zoning cases and R.L. c. 132, §§ 9, 17, permitting such evidence in juvenile hearings. In myriad matters which come before our Public Utilities Commission, hearsay may be introduced. R.L. c. 287, § 10; H. P. Welch Co. v. State, 89 N.H. 428, 439, 199 A. 886, 120 A.L.R. 282. Its admissibility before courts is well settled in such instances as divorce and custody proceedings--matters which affect among the most vital interests of mankind. Pflug v. Pflug, 92 N.H. 247, 29 A.2d 422 and cases cited; Sheehy v. Sheehy, 88 N.H. 223, 227-228, 186 A. 1, 107 A.L.R. 635. There is no occasion to further extend citation on this subject. It is apparent from the above that the Legislature and even the courts may make valid exceptions to the hearsay rule.

That the Legislature has done so here seems to us too clear to require extended consideration. The whole purpose of this statute was to provide new and more effective methods for disposing of these cases and a step toward this end was to admit hearsay evidence in the form of the report of the examining board. Section 5, subd. I says flatly that 'such report shall be admissible as evidence.' We do not believe that § 5, subd. II, stating that the board 'may be present at the hearing' and 'may * * * testify as to the result of their examination and to any other pertinent facts within their knowledge', was intended to nor does qualify the prior provision, § 5, subd. I, as the defendants argue. Matters of opinion may be facts within the board's knowledge and in any event to hold that the Legislature would make a plain statement of its intent as in § 5, subd. I and immediately thereafter nullify it by an ambiguous provision seems too fanciful a construction for us to seriously entertain. The probation and police reports here were available and could have been introduced by either side although it seems they would have added nothing to the expert's testimony. Now if this evidence was admissible, then the report of the board and the expert's testimony together were an adequate basis for the court's finding that the defendants were sexual psychopaths. It also seems in view of the numerous exceptions to the rule that the fact alone that hearsay evidence was admitted is not sufficient to render the proceedings invalid.

We believe that the question here is whether under all the circumstances the exception made by § 5, c. 314, supra violates "the very essence of a scheme of ordered liberty'.' Fitzgibbons v. Hancock, 97 N.H. 162, 82 A.2d 769, 771, and authorities cited. See also Ex parte Carter, 14 N.J.Super. 591, 82 A.2d 652. In late years our philosophy has undergone tremendous changes towards those who because of diseases, mental or physical or even for other causes, have become dangerous to or offenders against society. In many instances these changes have resulted in great benefits to the offenders as well as to the public. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, and authorities cited. Even in criminal trials in the matter of sentence at least the rigidity of the rules of evidence has been relaxed. Id., 337 U.S. at page 248, 69 S.Ct. 1079. The whole system of probation which has been tried and not found wanting 'relies heavily on nonjudicial implementation' of its procedures. Williams v. New York, supra, 337 U.S. at page 248, 69 S.Ct. at page 1083. The issue before us, narrow in its immediate scope but broad in its implication, comes to a matter of balancing the interest of the individual and of the society of which he is a member and from which he derives benefits. Cf. State v. Hobson, Del.Sup., 83 A.2d 846, 855-856. As Heraclitus of Ephesus said some twenty-five hundred years ago, 'The major problem of human society is to combine that degree of liberty without which law is tyranny, with that degree of law without which liberty becomes license.' We are faced with such a major problem here. In the case of insanity, it has long been settled that the result of the balance of such interests is that many procedures are permitted which would not be allowable under our criminal or even under all branches of civil law. Among these procedures is the right of the State to confine an insane person without giving him the right of notice or cross-examination. R.L. c. 17, §§ 11, 13, 17, 18. It is also common knowledge as well as implicit in these sections that the examining physicians and committing authorities may and do utilize hearsay in reaching their conclusions. As has been previously stated, our sexual psychopath law seeks to protect and cure persons just as does our insanity law who are regarded as ill rather than criminal. Their commitment is not looked upon as a sentence or punishment. In re Moulton, 96 N.H. 370, 373, 77 A.2d 26. Not only is the sexual psychopath benefited by protection and treatment but the finding that one is such frees him forever after from any prosecution arising out of the sex offense which resulted in the proceedings in his behalf. Laws 1949, c. 319, § 13. Nor is this finding final in the sense argued by the defendants. The sexual psychopath or others in his behalf may petition the court and procure his release at any time when it appears he is cured or ceases to be a menace to himself or others. Section 12, c. 314, supra. In this and other respects the proceedings are analogous to those in insanity cases, cf. R.L. c. 17, §§ 26-28, 11, 13, 17, 18, and it has been so held unanimously by this court. In re Moulton, 96 N.H. 370, 372, 77 A.2d 26. Actually, the defendants here are given substantially greater rights. For example, the sexual psychopath has the right of notice, of a hearing at which he may be present, the right to be represented by counsel who may cross-examine, and also the right to compel the attendance of witnesses. Sections 4, subd. III, 5, subd. I. In effect, the statute which we now construe does nothing save to expand...