The sole defense interposed by defendant below was insanity.

Certain expert testimony offered in rebuttal in behalf of the State bearing on the question of defendant's sanity, and based in part upon a physical and mental examination of the defendant in the absence of his counsel, was admitted over defendant's objection. This action of the trial court is assigned as error, defendant contending that it in effect compelled him to become a witness against himself in violation of his rights under the Fifth Amendment to the Federal Constitution and Sec. 12 of the Declaration of Rights of the Constitution of Florida.

There is a striking conflict of authority upon the question of the admissibility of testimony as to facts ascertained by means of a mental or physical examination of the *Page 896 accused made without his consent or over his objection. Many well-reasoned cases are cited in the principal opinion which hold such evidence inadmissible. See also: Wells v. State (Ala.), 101 South. Rep. 624; Perdue v. State (Ala.),86 South. Rep. 158.

On the other hand, many State courts, as well as the Supreme Court of the United States, hold such evidence admissible. In the respect under consideration, the Fifth Amendment to the Federal Constitution and Sec. 12 of the Declaration of Rights of the Constitution of Florida are identical. Each provides, amongst other things, that "no person shall be * * * compelled in any criminal case to be a witness against himself, * * * ". Construing this phase of the Fifth Amendment to the Federal Constitution, the Supreme Court of the United States, in Holt v. U.S., 218 U.S. 245; 54 L. Ed .1021, said:

"Another objection is based upon an extravagant extension of the Fifth Amendment. A question arose as to whether a blouse (a military coat) belonged to a prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statements inadmissible, and that it should be excluded for the same reasons. But the prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Moreover, we need not consider how far a court would go in *Page 897 compelling a man to exhibit himself. For when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent. Adams v. New York, 192 U.S. 585."

In Indiana it has also been held that evidence obtained by means of a forcible examination of the defendant's person is admissible, if relevant, without regard to the question whether the Court, at the trial or anterior thereto, could have compelled the defendant to submit to such an examination. See: O'Brien v. State, 25 N.E. Rep. 137; 9 L.R.A. 323. In that case the Court said:

"The question of duress and its effect upon information thereby obtained is not involved, because the facts to which the witness was called to testify did not depend upon a confession made by the appellant (the defendant), nor upon any act of his; the marks and scars upon the body had no relation to the force used to enable the witness to find them. * * * The conclusion can be reached that the offered testimony was within the constitutional prohibition only upon the theory that the witness was the mere mouth-piece, and that the appellant was the real witness, which would be a strained construction of the constitutional prohibition when applied to the offered testimony. * * * To hold that the testimony of the witness was incompetent would compel us in every case involving the identity of a person accused of crime to hold that testimony as to marks and scars hidden under the clothing which he wears is inadmissible if the information of the witness was obtained without the consent of the *Page 898 accused, no matter under what circumstances or in what manner obtained."

The view that such testimony is admissible has also been taken by several other courts. See: State v. Cerar, 207 Pac. Rep. 597; State v. Coleman, 123 S.E. Rep. 580, State v. Spangler, 159 Pac. Rep. 810; Hooks v. State,261 S.W. Rep. 1053; 16 C. J. 568. And see also the notes to State v. Petty, 108 Pac. Rep. 934, as reported in Ann. Cas. Vol. 25, 1912 Dall. 223.

This Court, in Ex parte Senior, 37 Fla. 1,33 South. Rep. 992; 32 L.R.A. 133, in construing Sec. 12 of the Declaration of Rights, held that a broad and liberal construction thereof should obtain in furtherance of the right sought to be secured, and to this end no technical limitation should be placed upon the terms employed. In this connection, however, this Court cited with approval the language of the Supreme Court of the United States in Councilman v. Hitchcock, 142 U.S. 547; 35 L. Ed. 1110, wherein it was said:

"The object (of the Fifth Amendment) was to insure that a person should not be compelled while acting as a witness in an investigation, to give testimony which might tend to show that he himself had committed a crime." (Italics supplied).

In construing the prohibition that no person shall be compelled in any criminal case to be a witness against himself, most Courts now seem to take the view that the word "witness" is used in the sense of "one who gives testimony." Taken in this aspect, the constitutional prohibition should receive a broad and liberal construction, but the majority view now is that it does not operate to exclude the testimony of one whose information is based upon a physical and mental examination of the accused *Page 899 for the purpose of determining the sanity of the latter. See: 2 Wharton Crim. Ev. (10th Ed.) Sec. 937, Et. Seq., Wigmore Evid. Sec. 2265, Et. Seq.

On the whole, it seems that the substantial weight of authority now sanctions the admission of testimony offered by the State concerning the mental condition of the accused, if relevant to the issue, even though the testimony be based wholly or in part upon a mental and physical examination of the accused, without his consent, and in the absence of his counsel, provided, however, the extent and nature of the examination be reasonable and lawful under all the circumstances, and some other constitutional right or immunity of the prisoner is not thereby violated, with all of which the examination now under consideration seems to be in accord. See: Sec. 22, Declaration of Rights, Constitution of Florida; State v. Height, 91 N.W. Rep. 935; 57 L.R.A. 437.

I therefore concur in the conclusion reached in the principal opinion.

BROWN, C. J., AND WHITFIELD AND TERRELL, J. J., concur.