Petition of Vickers, 38
| Decision Date | 04 September 1963 |
| Docket Number | No. 38,38 |
| Citation | 123 N.W.2d 253,371 Mich. 114 |
| Parties | Petition of Eilen Pat VICKERS for Writ of Habeas Corpus. |
| Court | Michigan Supreme Court |
John Goetz, Mt. Clemens, for petitioner and appellant.
George N. Parris, Pros. Atty., Macomb County, Tony Ferris, Chief Asst. Pros. Atty., Mt. Clemens, for appellee.
Before the Entire Bench.
This is an appeal from a circuit court order dismissing the writ of habeas corpus issued to inquire into the legality of petitioner's commitment to county jail by a justice of the peace for contempt for refusal to answer certain questions put to her as a people's witness at a preliminary examination in a criminal case in which Dr. Emery J. Gilbert and others, not including petitioner, were charged with conspiracy to commit the crime of abortion on pregnant women.
The questions put to petitioner were as follows:
She refused to answer on the ground that 'it might incriminate me'. For such refusal the justice of the peace found her guilty of contempt of court, committed in open court in the presence of the judge thereof, and ordered her confined in the county jail until she shall purge herself of such contempt by answering said questions.
If answers to the questions might tend to incriminate petitioner, she could not lawfully be required to answer under Michigan Constitution of 1908, art. 2, § 16 which provides '[n]o person shall be compelled in any criminal case to be a witness against himself.' Even though an answer to a question one way would not incriminate, if the opposite answer might, the constitutional privilege excuses the witness from making any answer thereto. In re Allison, 156 Mich. 34, 120 N.W. 19, and cases cited therein. If an answer either way to the questions would not incriminate her, she may be compelled to answer. Of that the court, not the witness, is the judge. In re Moser, 138 Mich. 302, 101 N.W. 588; In re Mark, 146 Mich 714; People, ex rel. Moll v. Danziger, 238 Mich. 39, 213 N.W. 448, 52 A.L.R. 136; 1 Burr's Trial 244.
Abortion involves concert of action between 2 persons, the perpetrator and the victim, the immediate effect of consummation reaching only the participants, as also in respect to adultery, bigamy, incest, or dueling, in which a charge of conspiracy to commit the offense will not lie against the 2 participants. This is because the conspiracy to commit them is in such close connection with the objective offense as to be inseparable from them. Curtis v. United States, 10 Cir., 67 F.2d 943; Lisansky v. United States, 4 Cir., 31 F.2d 846. See also: United States v. Katz, 271 U.S. 354, 46 S.Ct. 513, 70 L.Ed. 986; Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35; 77 L.Ed. 206. Hence, petitioner's answers would not incriminate her of conspiracy to commit abortion.
Could she be charged with abortion? C.L. 1948, § 750.14 (Stat.Ann. § 28.204) declares one guilty of a felony who, under certain circumstances, performs an abortion upon a woman. It does not provide that the woman herself shall be guilty of an offense. At common law she was not guilty of a crime even though she performed the aborting act upon herself or assisted or assented thereto. State v. Carey, 76 Conn. 342, 56 A. 632. The majority view is that not only may she not be held for abortion upon herself but neither as an accomplice. See annotations at 139 A.L.R. 993, et seq.
C.L.1948, § 767.39 (Stat.Ann. § 28.979), provides that one who procures, counsels, aids or abets the commission of an offense may be tried, convicted and punished as if he had directly committed the offense. In People v. Meisner, 178 Mich. 115, 144 N.W. 490, 491 this Court said:
'Where an offense can be committed only by a specified class, aiders and abettors cannot be charged as principals if they are outside the statute designation.'
Inasmuch, then, as petitioner cannot be held for commission of the crime of abortion upon herself, she may not be held as an aider or abettor thereof.
It is suggested in petitioner's brief that answers by petitioner to the stated questions might tend to incriminate her of adultery, lewd and lascivious cohabitation, disorderly conduct, violation of the Federal white slave act or other offenses. How this could be is not spelled out. In the case of In re Schnitzer, 295 Mich. 736, 295 N.W. 478, 480 this Court said:
'* * * The Constitution does not permit the witness 'to arbitrarily hide behind a fancied or intangible danger' (In re Moser, supra). The tendency to incriminate must be a reasonable one; an answer may not be withheld because it might possibly under some conceivable circumstances form part of a crime. 8 Wigmore on Evidence (3d Ed.), p. 354, § 2260. * * * In Ex parte Irvine, 6 Cir., 74 Fed. 954, 960, Judge Taft wrote:
We hold that the answers would not tend to incriminate her of those or any other conceivable offenses.
Affirmed.
While I can agree with Justice DETHMERS' conclusion, and the reasoning by which he reaches that conclusion, that petitioner was not entitled to assert her state constitutional privilege (Michigan Constitution of 1908, art. 2, § 16) to refuse answers to the last three of the questions asked, 1 I believe she was entitled to invoke the privilege in refusing to answer the first question, unlimited in its scope, and would be entitled to invoke it to refuse to answer further inquiry any broader than necessary to ascertain whether Dr. Gilbert performed an abortion upon petitioner and, if so, the facts involved in that specific event. My reason for so rigidly limiting the scope of inquiry of this witness is that, if Gilbert in fact performed an abortion upon her, once the facts relating only thereto are known, petitioner is entitled to assert the same constitutional privilege upon upon further inquiry about her associations with Gilbert, if any, that any other witness would be entitled to assert.
Absent supreme command to apply the Fifth Amendment to the Constitution of the United States to state cases such as this and confronted by a still binding command to the contrary, Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, we need only regard Fifth Amendment federal court cases as sources of guidance 2 in formulating the shape and substance of our own identically worded state constitutional guarantee. For me, however, they are highly persuasive, believing as I do that uniformity of construction in such cases is much to be desired. I turn, therefore, to federal cases to determine the bounds beyond which petitioner may not be compelled to testify without risking self-incrimination as an abortionist upon others, an aider and abetter therein, or a member of a conspiracy to commit abortion upon others.
In more recent cases, moreover, the Supreme Court has indicated a relaxation of the 'tangible and substantial probability' test enunciated by Judge Taft. In Hoffman v. United States (1950), 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, the Supreme Court reversed the contempt conviction of a witness who, before a federal grand jury, had refused to answer questions such as 'when did you last see A?'; 'did you see A last week?'; 'have you talked with A on the telephone?' The Court noted that witness' answers might have connected him with A when A was eluding the grand jury and, therefore, that witness might 'reasonably have sensed the peril of prosecution for federal offenses ranging from obstruction to conspiracy' (341 U.S. p. 488, 71 S.Ct. p. 819.). The Court then stated: 'In this setting it was not 'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate,' citing Temple v. Commonwealth (1881), 75 Va. 892, 898. At p. 486 of 341 U.S., at p. 818 of 71 S.Ct., the Court added: 'To sustin the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' As Hoffman shows, the Supreme Court is responsive to the possibility of compelling a witness to incriminate himself in a charge of conspiracy.
In Blau v. United States (1950), 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170, the Supreme Court reversed petitioner's conviction for contempt by refusing to answer grand jury questions regarding her association with Communist party members and her knowledge of the organizational structure of the party. 'Answers * * * would have furnished a link in the chain of evidence needed in a prosecution of petitioner for violation of (or conspiracy to violate) the Smith Act.' (340 U.S. p. 161, 71 S.Ct. p. 224.)
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