State v. Myers, 16554

• Decision Date: 29 October 1951
• Docket Number: No. 16554,16554
• Citation: 32 A.L.R.2d 430,67 S.E.2d 506,220 S.C. 309
• Parties: , 32 A.L.R.2d 430 STATE v. MYERS.
• Court: South Carolina Supreme Court

Page 506

67 S.E.2d 506

220 S.C. 309, 32 A.L.R.2d 430

STATE v. MYERS.

No. 16554.

Supreme Court of South Carolina.

Oct. 29, 1951.

Murchison & West, J. Clator Arrants, Camden, for appellant.

T. P. Taylor, Sol., Columbia, for respondent.

OXNER, Justice.

An indictment for murder is pending against appellant in the Court of General Sessions for Kershaw County. His counsel, on an ex parte application, obtained an order from the Court allowing him to be taken to the Veterans Hospital at Columbia, South Carolina, for a series of tests and examinations to determine his mental condition. Thereafter, on motion of the State and over the objection of counsel for appellant, the Court issued an order committing him to the State Hospital for the Insane at Columbia for a period of thirty days, for the purpose of having the authorities of that institution make an examination as to his sanity. This order, which is the subject of this appeal, was made under the terms of Section 6239 of the Code of 1942, which is as follows: 'Any judge of the circuit court is authorized to commit to the state hospital any person charged with the commission of any criminal offense who shall, upon the trial before him, be adjudged insane, or in whom there is a question as to the relation of mental disease to the alleged crime, whether such question is raised by the prosecution or defense, or it appears to the judge from any evidence brought before him or upon his own recognition: provided, that such commitment shall be for a period of thirty days, at the end of which the patient must be returned to the court if found sane, or duly committed by such judge if found insane. * * *'

Appellant contends that the action of the Court in compelling him to undergo an examination at the State Hospital (1) violated the right guaranteed to him under Article 1, Section 17 of the Constitution, of not being compelled to be a witness against himself, and (2) constituted a denial of the constitutional guaranty of due process of law. It is also asserted that the foregoing section of the Code does not authorize an examination prior to the actual trial of the case. These questions will be discussed in the order stated.

The foregoing statute, which has been in force a long number of years, represents quite a forward step in judicial procedure where there is any question as to the responsibility of an accused for a criminal act. It enables the court to secure technical evidence relating to his mental condition from an unprejudiced and reliable source and makes available to both the prosecution and defense expert evidence free from any possible sentiment of loyalty to either side. An examination under this statute is a distinct aid in the administration of justice. Statutes of similar import have been enacted in most of the states as will be seen by a resume thereof set out in Section 563, Wigmore on Evidence, Third Edition. So far as we are advised, this is the first time that any question has been raised in this State as to the validity of the statute under which the compulsory examination of appellant was ordered.

While there are a few early cases to the contrary, it is now almost uniformly held that where insanity is interposed as a defense, the compulsory examination of an accused by experts for the purpose of determining his mental condition and testifying in regard thereto does not violate either the constitutional privilege of the accused of not being compelled to be a witness against himself or the constitutional guaranty of due process of law. Hunt v. State, 248 Ala. 217, 27 So.2d 186; People v. Strong, 114 Cal.App. 522, 300 P. 84; Ingles v. People, 92 Colo. 518, 22 P.2d 1109; Blocker v. State, 92 Fla. 878, 110 So. 547; Noelke v. State, 214 Ind. 427, 15 N.E.2d 950; State v.Genna, 163 La. 701, 112 So. 655; Commonwealth v. Millen, 289 Mass. 441, 194 N.E. 463; People v. Truck, 170 N.Y. 203, 63 N.E. 281; State v. Nelson, 162 Or. 430, 92 P.2d 182; Commonwealth v. Musto, 348 Pa. 300, 35 A.2d 307; Jessner v. State, 202 Wis. 184, 231 N.W. 634, 71 A.L.R. 1005; State v. Coleman, 96 W.Va. 544, 123 S.E. 580. Also, see Rule 205, Model Code of Evidence, American Law Institute.

We are in accord with the conclusion reached in the foregoing cases. In the examination to be had at the State Hospital, appellant will not be required to vouch for anything. Nothing will depend upon his testimonial responsibility. The personal characteristics of an accused which are commonly open and observable to all are not of that secret nature which the constitutional privilege against self-incrimination was designed to protect. For instance, a defendant may be required to stand up in court for the purpose of identification. State v. O'Neal, 210 S.C. 305, 42 S.E.2d 523. It has been held that an officer's testimony was admissible to the effect that he compared defendant's shoe with certain tracks and that it fitted, notwithstanding the fact that defendant was forced to remove her shoe, and that such conduct did not violate defendant's constitutional privilege of immunity from testimonial compulsion. State v. Griffin, 129 S.C. 200, 124 S.E. 81, 35 A.L.R. 1227. In State v. Taylor, 213 S.C. 330, 49 S.E.2d 289, 291, 16 A.L.R.2d 1317, we said: 'The weight of authority is to the effect that the guaranty against self-incrimination has no application to such physical evidentiary circumstances as may be revealed by an open exhibition of the witness' body or by an ordinary observation of his person.'

It must be remembered that the order for the examination of appellant was made only after his counsel had secured the permission of the court to have him examined at the Veterans Hospital, which clearly indicated a provable plea of insanity. It would be an anomaly to say that he may advance such a claim...