In Re Mundy

Duncan, J. dissenting: I am of the opinion that the issue of the constitutionality of section 5, chapter 314, Laws 1949, is not before the court. The record does not show that the report of the examining board appointed by the Superior Court was received in evidence, and the question of whether the statutory provisions which would make such a hearsay report (McCurdy v. Flibotte, 83 N. H. 143, 146; Laird v. Railroad, 80 N. H. 58) admissible in evidence violates the provisions of the Constitution is not presented by this case. Whether the report of the board alone could be made the basis of commitment is not before us. *246 In this case the substance of the board’s report was received in evidence through the testimony of an expert who was a member of the board. He was permitted to relate the substance of certain reports made to the board by the state police and probation departments. The reports contained extra-judicial statements attributed to certain minors who did not testify at the trial, purporting to describe conduct on the part of the defendants which prompted the criminal charges resulting in these petitions. As the opinion of the court recognizes, these hearsay statements were relied upon by the witness as a basis for his opinion that the defendants were sexual psychopaths. The testimony was received over objection by the defendants to reference by the witness to the hearsay statements and to testimony relying upon them. Subject to the defendants’ exceptions the Presiding Justice ruled that “the evidence may be introduced and may be used as a part of [the witness’] opinion .... Under the statute it is permitted and that’s what I am going to go by.” No other witnesses testified, and there was no direct evidence of the facts reported to the board and assumed by the witness to be true. The conclusion that this was not error is insupportable. No sanction for the ruling of the Trial Court is to be found in the statute. The board was charged with a duty not only to examine the defendants, but also “to obtain any additional information in their opinion necessary to ascertain whether . . . [either was] a sexual psychopath.” S. 4-1. Section 4 III directs that facts so obtained and relied upon shall be stated in the report of the board: “any evidentiary facts necessary to support [their opinions].” Section 5 II directs that the solicitor, as counsel for the board “shall cause witnesses to be subpoenaed, if necessary, in support of the report.” (Cf. Connell v. Company, 93 N. H. 244; Parent v. Company, 70 N. H. 199). By the same section, members of the board are permitted to testify to the result of their examination, and to other pertinent “facts within their knowledge.” Far from authorizing the receipt of hearsay of the character here introduced through testimony of a member of the board, the statute evidences with reasonable clarity a purpose to require the solicitor to prove any facts not within the personal knowledge of the members but necessary to the conclusions contained in their report, by independent testimony from witnesses having knowledge of such facts. It is inconceivable that the solicitor’s duty was intended to be performed merely by procuring the attendance of the necessary *247 witnesses. The Legislature intended that they should be called to the stand as witnesses by the solicitor, and examined to the extent necessary to support the facts upon which the opinion of the board is based. Certainly it was never anticipated that defendants in proceedings such as these should offer testimony of witnesses summoned by counsel for the board “in support of the report” adverse to the defendants’ interest. Cf. s. 5 I. The opinion recognizes, as it must upon this record, that the opinion to which the expert witness testified depended upon the hearsay evidence. The ruling of the Trial Court makes it manifest that the finding that these defendants are sexual psychopaths is correspondingly founded upon the incompetent evidence. In this situation no justification for holding the proceedings free from error can reasonably be found. In consequence of the error, the defendants have been deprived of rights guaranteed to them by Art. 15th of the Bill of Rights. They are to be deprived of their liberty for an indeterminate period upon the strength of extra-judicial, unsworn statements by witnesses against them whom they have not met “face to face.” Art. 15th. They had no full and fair hearing, the minimum requirements of which are that a prima facie case should be made out against them by testimony which they may test by cross-examination. Wig., Ev., s. 1367. Their liberty is taken under a statute which requires that they be found victims of such abnormal compulsions “as to render [them] irresponsible with respect to sexual matters and thereby dangerous to [themselves] or to other persons” (s. 2 I). This is statutory language which has been held to require evidence of “an utter lack of power to control their sexual impulses ... [so as to be] likely to attack or otherwise inflict injury ... or other evil on the objects of their uncontrolled and uncontrollable desire.” Minnesota v. Probate Court, 309 U. S. 270, 273 . They have been found psychopaths although the record contains no competent evidence of dangerous irresponsibility with respect to sexual matters. The guarantees afforded by Art. 15th of our Bill of Rights do not differ materially from those of the due process clause of the Fourteenth Amendment to the Federal Constitution. State v. Pennoyer, 65 N. H. 113. “[The] evidence was improperly received and . . . but for that evidence it is wholly speculative whether the requisite finding would have been made.” Bridges v. Wixon, 326 U. S. 135, 156 . The defendants’ exception presents an error infringing upon rights guaranteed by two constitutions. See Buchsbaum & Co. *248 v. Federal Trade Comm’n, 153 F. (2d) 85. It would never be thought that the evidence received at this trial could be made competent in the criminal proceedings originally brought. State v. Clapp, 94 N. H. 62, 63. Yet because the proceedings before us were civil in nature, it is said that the evidence was both admissible, and sufficient to warrant the order of commitment. I can see no justification for this view.