State v. Damm, 7390

• Decision Date: 16 April 1936
• Docket Number: 7390
• Citation: 64 S.D. 309,266 N.W. 667
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. DAMM, Appellant.
• Court: South Dakota Supreme Court

64 S.D. 309

266 N.W. 667

STATE OF SOUTH DAKOTA, Respondent,

v.

DAMM, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Ray E. Dougherty, Judge #7390—On rehearing. Former judgment adhered to. Louis H. Smith, Sioux Falls, SD Diamond & Jory, Sheldon, IA Attorneys for Appellant. Walter Conway, Attorney General R.F. Drewry, Assistant Attorney General, Pierre, SD Attorneys for the State. Opinion Filed Apr 16, 1936 [For former opinion, see 252 N.W. 7.]

CAMPBELL, Judge.

Defendant was convicted of second-degree rape, and this court affirmed the judgment. State v. Damm (1933) 252 N.W. 7. That some one had intercourse with prosecutrix at about the date charged in the information was evidenced by the fact that she bore a child in due time thereafter. Prosecutrix maintained that she had never had intercourse with any person other than defendant. Consequently, the issue of paternity became highly material. Defendant, at the trial, asked the court to require prosecutrix and her infant to furnish a few drops of blood for the purpose of having the same tested and compared with the blood of the defendant, as a result of which test defendant maintained that it might be possible to demonstrate as a scientific fact the impossibility of his paternity. The court refused to make such an order, and we held in our former opinion that this refusal was not error. Subsequently, we granted a rehearing limited to this particular point, and upon this point the matter has been orally re-argued and again submitted.

The scientific theory underlying the matching or testing of blood to establish impossibility of a given paternity is dealt with to some extent in our former opinion, to which reference is hereby made, and will be found set forth in complete detail in many of the authorities we shall presently cite. To attempt to restate or further explain such theory here is therefore entirely unnecessary, and we shall merely refer to it throughout this opinion as “the blood test,” meaning thereby the scientific tests advocated and relied upon by the pathologists and biologists as demonstrating the possibility or impossibility of a claimed paternity, based in essence upon the presence or absence or combination of the isoagglutinogens A and B and the agglutinogens M and N in the red blood corpuscles of the mother, infant, and claimed father, and the theory of the transmission of such agglutinogens and isoagglutinogens by inheritance, all as completely explained and fully elaborated in the authorities hereinafter to be mentioned.

Our former opinion seems to have been quite widely accepted and understood, both by various writers who have commented thereon and by counsel in the case, as a holding that the reliability of the blood test was not as yet generally established or recognized by the consensus of expert opinion in the particular field of science wherein the matter lies. We did not intend so to hold, and, as a matter of fact, did not mean to express any opinion one way or the other on the abstract question of the reliability of the test as a matter of science. We endeavored to limit our ruling on the point to an appreciably different and much narrower proposition; to wit: “That it does not sufficiently appear from the record in this case that modern medical science is agreed upon the transmissibility of blood characteristics to such an extent that it can be accepted as an unquestioned scientific fact that, if the blood groupings of the parents are known, the blood group of the offspring can be necessarily determined, or that, if the blood groupings of the mother and child are known, it can be accepted as a positively established scientific fact that the blood group of the father could not have been a certain specific characteristic group. In other words, we think it insufficiently appears that the validity of the proposed test meets with such generally accepted recognition as a scientific fact among medical men as to say that it constituted an abuse of discretion for a court of justice to refuse to take cognizance thereof, as would undoubtedly be the case if a court today should refuse to take cognizance of the accepted scientific fact that the finger prints of no two individuals are in all respects identical.” State v. Damm, supra, at page 136, 12.

In view of the fact that our opinion seems generally to have been interpreted as passing upon the broader and more abstract question of the existence of reliability as a matter of established scientific fact; in view of the novelty and importance of the matter; and particularly in view of the fact that we do not wish any misapprehension as to the views of this court by any possibility to deter other courts from accepting and acting upon a tenet of biological science which we are convinced is now fully ripe for acceptance in medico-legal cases, we deem it proper at this time to state, for whatever it may be worth, our actual opinion on the abstract question, notwithstanding the fact (as will more fully, hereinafter appear) that it is also our view that the determination of the abstract question favorably to appellant’s contentions is not decisive of the present appeal.

We therefore say, without further elaboration or discussion, that it is our considered opinion that the reliability of the blood test is definitely, and indeed unanimously, established as a matter of expert scientific opinion entertained by authorities in the field, and we think the time has undoubtedly arrived when the results of such tests, made by competent persons and properly offered in evidence, should Chicago, deemed admissible in a court of justice whenever paternity is in issue. The matter is discussed at length by Dean Wigmore in his customary comprehensive and adequate fashion in the 1934 Supplement to the Second edition of his treatise on Evidence at pages 149-160. Among technical articles and works on the subject (in addition to those cited by Dean Wigmore in note 1, p. 150 of his Supplement), the following may be mentioned: “Blood Test for Determination of Fatherhood” (Journal Am. Med. Assn., March 31, 1928, p. 1057); Schiff, “MedicoLegal Significance of Blood Groups” (The Lancet, Nov. 2, 1929, p. 921); “Blood Tests for Paternity” (Journal Am. Med. Assn., Aug. 30, 1930, p. 681); Lattes, “Individuality of the Blood” (Rev. Ed. Oxford Univ. Press, 1932); Swetlow, “Symposium on the Forensic Value of Tests for Blood Grouping” (Med. Times and Long Island Med. Journal, July 1932, p. 203); Pepper & Farley, “Practical Hematological Diagnosis” (W.B. Saunders Co., Philadelphia, 1934, pp. 195 et seq.); Landsteiner, “Forensic Application of Serologic Individuality Tests” (Journal Am. Med. Assn., Oct. 6, 1934, p. 1041); Wiener, “Blood Groups and Blood Transfusion” (Charles C. Thomas, Springfield, Ill., 1935) ; Wiener, “Determining Parentage” (The Scientific Monthly, April 1935, No. 235, p. 323). For discussion of the point in legal periodical literature, with much citation of scientific authority, see: VII St. John’s Law Rev. 253 (May 1933); VIII St. John’s Law Rev. 70 (Dec. 1933); IX St. John’s Law Rev. 102 (Dec. 1934); 43 Yale Law journal 651 (Feb. 1934); 82 Univ. Pa. Law Rev. 654 (April 1934); 9 Wis. Law Rev. 314 (April 1934); XIX Iowa Law Rev. 625 (May 1934); 32 Mich. Law Rev. 987 (May 1934); 1 Univ. Chicago Law Rev. 798 (May 1934); XXV Journal Crim. Law and Criminology 121 (May-June 1934); XXV Journal Crim. Law and Criminology 187 (July-August 1934); XX Cornell Law Quarterly 232 (Feb. 1935); 21 ABA Journal 680 (Oct. 1935).

So far as concerns adjudicated cases dealing with the point in courts in the United States, there are but few. We find none as yet reported from any court of last resort. In November, 1931, the reliability of the blood test appears to have been recognized and made the basis of granting a new trial in the court of common pleas of Fayette County, Pa., in the case of Commonwealth v. Zammarelli, 17 Pa. Dist. & Co. R. 229. In New York, the reliability of the blood test was definitely recognized and an order made for the taking of blood from a plaintiff and her infant child in a very able opinion, showing complete familiarity with the subject, by Mr. Justice Steinbrink of the Supreme Court for Kings County. Beuschel v. Manowitz (1934) 151 Misc. 899, 271 NYS 277. This application and order appear to have proceeded under section 306 of the Civil Practice Act, a statute very similar in scope to our own chapter 179, Laws SD 1921. The New York statute reads as follows:

“In an action to recover damages for personal injuries, if the defendant shall present to the court satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of, the court, by order, shall direct that the plaintiff submit to a physical examination by one or more physicians or surgeons to be designated by the court or judge, and such examination shall lie had and made under such restrictions and directions as to the court or judge shall seem proper. If the party to be examined shall be a female she shall be entitled to have such examination before a physician or surgeon of her own sex. The order for such physical examination, upon the application of the defendant, may also direct that the testimony of such party be taken by deposition pursuant to this article.

The ruling of Mr. Justice Steinbrink, however, was presently reversed by the Appellate Division (same title, 241 App. Div. 888, 272 NYS 165, 166) in a brief opinion; the complete text of which is as follows: “Order directing plaintiff and her child to permit the taking of blood for the purpose of determining defendant’s paternity of the child reversed on the law and the facts, without costs, and motion denied. Plaintiff may submit or not to the taking of her own blood, but it plainly determines nothing. She asserts, and no one would gainsay it, that she is the mother of this child....