People v. Nichols, 341 Mich. 311 (Mich. 1954)

Boyles, J.

(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* 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 the statute provides for a performance bond by the father and commitment to jail for failure to perform. However, the rules of evidence in civil cases apply and do not require that the guilt of the defendant be proved beyond a reasonable doubt. Semon v. People,*

42 Mich 141; People v. Phalen, 49 Mich 492; Harley v. Ionia Circuit Judge, 140 Mich 642.

The complaining witness, a former schoolteacher with a B.S. degree, 27 years of age, testified that for some time in 1950 she saw the defendant, also 27 years of age, 2 or 3 Saturday nights a month. She testified that while riding in an automobile they gradually “necked” and caressed, and that in January or February, 1951, they had sexual intercourse at their “favorite parking spot” in the country. In May, 1951, she was pregnant. She testified that at that time they again had sexual intercourse, and that “these are the only 2 times I ever had sexual relations with him or anyone.” The child was born November 20, 1951. She decided to keep the child, telephoned the defendant, they met, she gave the baby to the defendant to hold and told him it was their child: She further testified:

Her testimony that she was with the defendant frequently in 1950, that they were together at the Moose club on a Saturday night in January or February, 1951, left in an automobile to take a “baby sitter” home from her sister’s house late at night and did not return until 5 or 6 o’clock in the morning (on which occasion she testified they had sexual intercourse) was corroborated by her sister and her brother-in-law, at whose home she was staying. Her testimony as to being at her brother-in-law’s home late on Saturday night on January 20 or 27, or February 10, 1951, was corroborated by her sister and brother-in-law, and also by the “baby sitter” who confirmed the complaining witness’s testimony that she (the complaining witness) and the defend

ant were together at that time and that they took her (the “baby sitter”) home late at night.

The defendant, testifying in his own behalf, admitted that he had been out with the complaining witness, of having “made love” to her, denied having been with her in January or February, 1951, and categorically denied ever having had sexual intercourse with her.

The defendant seeks reversal solely on the claim that the court erred in receiving testimony, over his objection, that blood-type tests of the blood of himself, the complaining witness, and of the child disclosed that their blood was all of the same type, and. that it indicated he could be the father; and that the court erred in charging the jury that it could give such testimony whatever weight the jurors deemed proper.

Whether this was error is a question of first impression in this State.

In March, 1952, before the trial, the blood of the defendant, of the complaining witness, and of the child, was submitted to blood-type tests, requested by the defendant at the suggestion of his counsel. The samples of blood were taken by a doctor who was director of the branch laboratory of the Michigan department of health in Grand Rapids, when the defendant, the complaining witness and the child were there at the defendant’s request. These 3 blood samples were tested for blood-group type by Doctor Muehlberger, the doctor in charge of the crime detection laboratory of the Michigan department of health at Lansing. He testified at length as to the scientific method of determining blood types, and how the results were obtained. Over objection by the defendant, he was allowed to testify that the types of said 3 specimens of blood were the same, and that this indicated that the defendant could be the father of the child insofar as blood type was concerned. The

doctor also testified that his finding of possible paternity was not conclusive, that any other person having the same type could have been the father, “so there is nothing definite about it;” and in answer to the question “How large the class is not known?” (he., having the same results from the test) said “there are about 2 billion people in this world.” Doctor Muehlberger testified as to the scientific tests used to determine blood types, as follows:

that was the basis on which these 3 bloods were typed to determine which of these groupings they fell into.

factors and blood groupings in which the blood of these 3 persons falls, are you able to draw any conclusion from that?

On cross-examination, the doctor testified:

“A. Yes, the white population of this country falls roughly into about 45% of type 0, 42% of type A, about 10% of type B, and about 3% of type AB. Is that what you—

For a more comprehensive article by an experienced expert in taking blood-grouping tests, explaining the scientific steps used, see Michigan State Bar Journal, January, 1954, p 12.

The court, in referring to the blood-type testimony, charged the jury as follows:

The question of the admissibility of this testimony has not heretofore been before this Court. In other jurisdictions, it has been passed upon, under various differing facts and circumstances. In 104 ALR 430 the case of State v. Damm (1933), 62 SD 123 (252 NW 7), is reported in full. The headnotes in 104 ALR at pp 430, 432, say:

“The result of tests made by competent persons for the ascertainment of blood types or groupings is admissible in evidence upon the issue of paternity of a child. (On rehearing.)

In deciding the case, the supreme court of South Dakota, 62 SD 123 at pp 131, 132, 136, said:

being passed upon by any courts of last resort in the ■United States. *

On rehearing of State v. Damm, 64 SD 309 (266 NW 667), said court referred to articles from medical and law journals and foreign jurisdictions, and at pp 315-317, reported in 104 ALR at pp 444-446, said:

In Arais v. Kalensnikoff (1937), 10 Cal2d 428 (74 P2d 1043, 115 ALR 163) (decided in the absence of statute law), the court held (syllabi):

for the father at the request of defendant and for the purpose of protecting him.

In the more recent Charles Chaplin case, of Berry v. Chaplin (1946), 74 Cal App2d 652 (169 P2d 442), the California court held (Pacific syllabi):

In so holding, the court said (pp 665, 666):

given the weight to which it appears to he justly entitled. *

The California cases were decided in the absence of any statute declaring whether or not the testimony of blood-group tests should he admissible without regard to the results. A like absence of such a statute prevailed in this State at the time the instant case arose and was decided in the trial court. Subsequent to the California decisions, California* and Michigan† have enacted such statutes. The Michigan statute is worded quite unlike the statutes under consideration in other jurisdictions and does not apply to the situation here.

In decisions from other jurisdictions, the question involved the construction of statute law and they are not controlling in the absence of a statute in the instant case. In Ohio, the statute provided that blood-grouping tests might be required to determine whether a person could be excluded as being the father of a child and expressly declared that the result of the test, if it establishes nonpaternity, shall be receivable in evidence. The court held that the statute authorized the admission of such testimony only where the results established nonpaternity, otherwise not admissible. In State, ex rel. Freeman,

v. Morris (1951), 156 Ohio St 333, 337, 338 (102 NE 2d 450), the court said:

In Beach v. Beach, United States Court of Appeals for the District of Columbia (1940), 72 App DC 318 (114 F2d 479, 131 ALR 804), also decided in construing a statute, the appellant alleged pregnancy by the defendant, which he denied. A child was born pending suit and the district judge, on motion of the defendant, ordered that the mother and child submit to blood-grouping tests to compare with the blood of the defendant. The court said (pp. 480, 481):

Grouping Tests, which shows that although such tests cannot prove paternity, and cannot always disprove it, they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts. The use of the tests as disproof of paternity, with or without a statute expressly authorizing it, has been approved in a number of cases.*

Flippen v. Meinhold, 156 Misc 451 (282 NYS 444), also considered the effect of a statute where the plaintiff, in a suit for support of plaintiff’s child, sought a court order to compel the defendant to submit to blood grouping under a statute. The court said (pp 445, 446):

action conld not be compelled to submit to a blood-grouping test. The evident purpose of the statute was to obviate injustice wherever possible, and this becomes apparent when due consideration is given to the extent to which such tests are of scientific value. These tests may, in some instances, conclusively prove nonpaternity; they never establish paternity.

To recapitulate, New York,1 Pennsylvania,2 Ohio3 and the Congress4 have enacted statutes which provide for the taking of blood-group tests in paternity cases, and for the admissibility in evidence of the results where the exclusion of the defendant from such paternity has been established. In construing

such statutes, the courts have held that testimony of the result shall he admissible in evidence only where the result of such tests establishes the exclusion of the defendant from such possible paternity.

They cannot be said to control in the case at bar where there is no such statute to be construed. California and Michigan seem to be the only 2 jurisdictions where this question has been brought before the courts of last resort, in the absence of a statute to be construed in deciding the precise question here. We are in accord with the reasoning of the California court, that in the absence of statute, testimony of the result of blood-group tests is to be considered as expert testimony, admissible as such for such consideration as the trial judge or jury may consider it should be given in that case. In the instant case, disregarding the testimony as to the result of the blood tests, the great weight of the testimony adduced here fairly establishes the paternity of the defendant. The testimony of the complaining witness is convincing and it was not disturbed by cross-examination. We do not decide here whether under different circumstances the admission of testimony of blood-grouping tests would require reversal and a new trial. Nor do we decide here the effect of the Michigan statute subsequently enacted. Under the circumstances here, the admission of the testimony and the court’s charge was not reversible error. There has been no miscarriage of justice.

The judgment should be affirmed.

Dethmers, J.

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 SD 123, 64 SD 309 (252 NW 7, 266 NW 667, 104 ALR 430, 441); Arais v. Kalensnikoff, 10 Cal2d 428 (74 P2d 1043, 115 ALR 163); or Berry v. Chaplin, 74 Cal App2d

652 (169 P2d 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 2 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 2 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 3 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 NYS 444), and the Ohio case of State, ex rel. Freeman, v. Morris, 156 Ohio St 333 (102 NE 450), be dismissed as not in point because of the existence of pertinent statutes in those States *1 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 (pp 336, 337):

“The case of State, ex rel. Walker, v. Clark, 144 Ohio St 305 (58 NE2d 773), 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.

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.

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 significant for the further reason that the court also said the following (p 338) :

In the ease 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 (p 497):

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 bo considered as having

probative value. Tbe 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 the jury. This was prejudicial to defendant.

Plaintiff relies on CL 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, where the similar provisions of CL 1948, § 650.28 (Stat Ann 1943 Rev § 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.

Btttzel, C. J., and Carr, Bushnell, Sharpe, Reid, and Kelly, JJ., concurred with Dethmers, J.