People v. Nichols

• Decision Date: 29 November 1954
• Docket Number: No. 83,J,83
• Citation: 67 N.W.2d 230,341 Mich. 311
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. James NICHOLS, Defendant and Appellant. une Term.
• Court: Michigan Supreme Court

Page 230

67 N.W.2d 230

341 Mich. 311

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. James NICHOLS, Defendant and Appellant.

No. 83, June Term.

Supreme Court of Michigan.

Nov. 29, 1954.

Konrad D. Kohl, Paul L. Greer, Detroit, for appellant.

Stuart Hoffins, Pros. Atty., Berton Sevensma, Asst. Pros. Atty., Grand Rapids, for appellee.

Before the Entire Bench.

DETHMERS, Justice.

Admission of testimony concerning results of blood tests to establish paternity constituted reversible error. A contrary view is scarcely supported by State v. Damm, 62 S.D. 123, 252 N.W. 7, 104 A.L.R. 430; Arais v. Kalensnikoff, 10 Cal.2d 428, 74 P.2d 1043, 115 A.L.R. 163; or Berry v. Chaplin, 74 Cal.App.2d 652, 169 P.2d 442. In the South Dakota case, a rape case in which the issue of paternity became highly material, the decision boils down to the simple holding that it was not error to refuse to require prosecutrix and her infant to submit, on defendant's motion, to blood tests for the purpose, as defendant hoped, of establishing his nonpaternity. Language in that case to the effect that such tests are reliable and the results admissible in evidence was not only dicta, but it was expressed against a background in which the tests were sought for the purpose of establishing nonpaternity, for which the tests are reliable, and not, as here, offered in evidence for the purpose of establishing paternity, for which they admittedly have no probative value whatsoever. In the two California cases expert testimony was offered to show that the tests had established defendants' nonpaternity. No question as to the admissibility thereof into evidence was raised or discussed, but the same was apparently assumed. The holding in the two cases was that such expert testimony was not conclusive of the issue of nonpaternity but must be considered in connection with all other proofs in the case and that, therefore, the defendants were not, solely on the strength of the tests, entitled to reversal of judgments adverse to them. The three cases did not consider and hence cast no light on the question of the admissibility of such evidence to establish paternity as in the case at bar.

Should the New York case of Flippen v. Meinhold, 156 Misc. 451, 282 N.Y.S. 444 and the Ohio case of State ex rel. Freeman v. Morris, 156 Ohio St. 333, 102 N.E.2d 450, be dismissed as not in point because of the existence of pertinent statutes in those states? I think not. As appears from the quotation from the Flippen case, contained in Mr. Justice Boyles' opinion, the New York statute provides that the court shall direct parties, in certain actions, to submit to blood tests "wherever it shall be relevant to the prosecution or defense of an action." In that case the court held the prosecutrix not entitled to an order requiring defendant to submit to a blood test for the reason, as it said, that the test would not be "relevant to the prosecution' * * *, as even a positive result would furnish no satisfactory proof of defendant's paternity.' Hence, the controlling question in that case, under the language of the statute itself, was the relevancy of the test. Relevancy is precisely the question here in determining the admissibility of the evidence concerning the results of the test. If evidence is irrelevant, it is inadmissible. Stroh v. Hinchman, 37 Mich. 490. The New York case is authority for its irrelevancy. In the opinion in the Ohio case there appears the following [156 Ohio St. 333, 102 N.E.2d 451]:

'The case of State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773, 776, presented the question of proof of nonpaternity in a bastardy proceeding, and it was there held that the finding and result of a blood-grouping test made by a qualified expert from the blood of the complainant, the child and one whose nonpaternity was sought to be established was competent for such purpose.

'In the course of the opinion in that case it was stated by Judge Zimmerman: 'This sort of test is of comparatively recent origin, but medical authorities agree on its accuracy and reliability to establish nonpaternity in the great majority of instances. In the present stage of development, however, it is on no value in proving paternity.'

'Although that statement may be regarded as dicta in that case it is pertinent here, for we now have the specific question of the competency of blood-grouping tests to prove paternity. Therefore, it may be here repeated that it is established that there is complete accord of experts in biology upon the proposition that results from such blood tests, disclosing a mere possibility of paternity, must be discarded and excluded from evidence as being valueless; and that their admission in evidence is prejudicial.

'it cannot be assumed, therefore, that in the enactment of the statutes above quoted there was any purpose on the part of the General Assembly to make competent any such affirmative evidence in such proceedings.'

From the quoted language it is clear that the Ohio court based its holding that the admission of such testimony to establish paternity was prejudicial on the 'complete accord of experts in biology' and not on the provisions of the statute, holding, rather, that the statute did not disclose a legislative purpose to 'make competent any such affirmative evidence' which the court considered would have been prejudicial and inadmissible, even in the absence of a statute, for the reason just stated. The Ohio case is signficant for the further reason that the court also said the following:

'The resulting prejudice was augmented by the language of the court's charge wherein, following specific reference to the evidence in regard to the blood-grouping test, the court stated that it 'is not to be concluded by you merely by reason of the fact that blood grouping compared favorably and that this accused could be the father of the child. In other words, the fact alone would not warrant you in finding him the father of this child, that fact alone.' (Emphasis supplied.)

'That statement, though negative in character, strongly suggested that weight should be accorded such evidence in the determination of the issue submitted. The prejudicial effect of the evidence as thus emphasized by the court's charge becomes clear.'

In the case at bar the trial court told the jury that defendant had requested the test, and then instructed them that they could weigh the testimony concerning the results and give it such weight as they deemed proper. In point is the quoted language of the Ohio court 'That statement * * * strongly suggested that weight should be accorded such evidence * * *. The prejudicial effect of the evidence as thus emphasized by the court's charge becomes clear.'

All the scientific evidence in this case and in the cited cases is in accord that the results of blood tests may rule out but can never establish paternity. In Stroh v. Hinchman, supra, this Court said:

'All evidence should have some legitimate tendency to establish or disprove the fact in controversy, and whatever has no such tendency should be rejected.'

The evidence here complained of had not the slightest probative value or tendency to prove defendant's paternity. Accordingly, it should have been rejected.

That the error was, as the Ohio court held, prejudicial, there can be no doubt here. The jury was given to understand that the tests were made on defendant's motion, to establish his nonpaternity and that when the results failed to do so he then objected to their admission into evidence and sought to conceal them from the jury. The possible psychological effect on the minds of the jurors cannot be ignored. The use of scientific apparatus and tests and expert testimony as to scientific results, placed before the jury with an instruction that they could accord such weight thereto, bearing on the controverted issue, as they might deem proper, could not have failed to mislead the jurors into believing that this totally irrelevant evidence might be considered as having probative value. The average juryman is bound to be impressed by an array of scientific material and data presented through the testimony of expert witnesses under circumstances in which its utter irrelevancy is not made clear, but, on the contrary, it is permitted to pose as relevant testimony to be weighed by them. This was prejudicial to defendant.

Plaintiff relies on C.L.1948, § 769.26, Stat.Ann. § 28.1096, which provides in effect that a verdict shall not be set aside in a criminal case on the ground of improper admission of evidence unless, from an examination of the entire cause, it affirmatively appears that such error resulted in a miscarriage of justice. Plaintiff urges that the entire record is persuasive of defendant's guilt. As we held in a civil case, Soltar v. Anderson, 340 Mich. 242, 65 N.W.2d 777, where the similar provisions of C.L.1948, § 650.28, Stat.Ann. § 27.2618, were urged against a claim of misdirection of the jury, the rule always in effect in Michigan, both before and after the enactment of the mentioned statutes and unaffected thereby, has been and is that the question of reversal is controlled by determination of whether the error was prejudicial. Having been prejudicial, it follows that the resulting verdict and judgment must be and are reversed, with new trial.

BUTZEL, C. J., and CARR, BUSHNELL, SHARPE, REID, and KELLY, JJ., concurred with DETHMERS, J.

BOYLES, Justice (dissenting).

The defendant appeals from an order following a jury verdict of guilty of being the father of the illegitimate child of the complaining witness, a single woman. The proceeding is commonly referred to as a bastardy case, although the statute ¹ does not use that term. The objective sought by the statute is to compel the father of an illegitimate child to assist in its support, and to prevent the child from being a public charge. The proceeding is quasi-criminal in nature in that...