People v. Lewis, Docket No. 7578

• Decision Date: 22 February 1971
• Docket Number: No. 2,Docket No. 7578,2
• Citation: 187 N.W.2d 571,31 Mich.App. 91
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. J. C. LEWIS, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 571

187 N.W.2d 571

31 Mich.App. 91

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. J. C. LEWIS, Jr., Defendant-Appellant.

Docket No. 7578.

Court of Appeals of Michigan, Division No. 2.

Feb. 22, 1971.

Released for Publication June 9, 1971.

Douglas A. Chartrand, Smith, Magnusson & Anderson, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and T. M. BURNS and ANDREWS, ^* JJ.

PER CURIAM.

After a non-jury trial, the defendant was convicted on charges of rape, M.C.L.A. § 750.520 (Stat.Ann.1954 Rev. § 28.788), and gross idencency, M.C.L.A. § 750.338b (Stat.Ann.1954 Rev. § 28.570(2)). The defendant raised insanity as a defense and the court ordered him to undergo a psychiatric examination. He now appeals, contending it was error to compel him to submit to the psychiatric examination and that the trial court did not use the proper test to determine his sanity.

Defendant raises two objections to the compulsory psychiatric examination. He contends that a circuit court lacks the power to order a psychiatric examination in the absence of a statute giving the court such authority; he also contends that a compulsory psychiatric examination violates his privilege against self-incrimination.

Both of these contentions are governed by People v. Martin (1970), 26 Mich.App. 467, 182 N.W.2d 741; see People v. Early (1970), 25 Mich.App. 363, 181 N.W.2d 586. In Martin, the Court held that a circuit court has the inherent power to compel a defendant who has raised an insanity defense to undergo a psychiatric examination. The Court held also that, where the underlying purpose of a psychiatric examination is to obtain data germane to the question of sanity and not to obtain facts relating to defendant's participation in the crime, defendant's Fifth Amendment rights are not violated, Per se.

In determining that the defendant was sane, the trial court applied the test found in People v. Durfee (1886), 62 Mich. 487, 29 N.W. 109. The defendant now contends that the court should have used the test found in the Model Penal Code § 4.01, or one of the variants of that test. Furthermore, at no time prior to the verdict did defense counsel request that the test now urged be used. This issue is controlled by People v. Wright (1970), 25 Mich.App. 499, 181 N.W.2d 649; People v. Markham (1969), 19 Mich.App. 616, 173 N.W.2d 307; People v. Morris (1968), 10 Mich.App. 526, 159 N.W.2d 886. In those cases we held that the test found in Durfee, supra, is presently the law of this state.

Affirmed.

* MARK S....