People v. Schram, 73

• Decision Date: 19 July 1965
• Docket Number: No. 1,No. 73,73,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Clayton SCHRAM, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 44

136 N.W.2d 44

1 Mich.App. 279

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Clayton SCHRAM, Defendant-Appellant.

Cal. No. 73.

Court of Appeals of Michigan, Division No. 1.

July 19, 1965.

Michael Clayton Schram, in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Detroit, for appellee.

Before QUINN, P. J., and BURNS and T. G. KAVANAGH, JJ T. G. KAVANAGH, Judge.

On September 26, 1958, Fred Piper, the proprietor of Piper's Tavern was tending bar when a man entered, ordered a beer, and stationed himself near the rear exit. He brandished a sawed-off shotgun and announced a holdup.

Piper reached for a gun and the robber shot him. The robber then dropped his gun and fled.

Subsequently Fred Piper identified Mark Brock as the holdup man and Brock was arrested pursuant to a warrant on January 20th, 1959, examined on January 27th and the criminal information was filed February 19, 1959.

In the meantime on January 5, 1959 the police learned that a second man was involved in the crime and on January 27th a warrant was issued against defendant, Michael Clayton Schram. Schram was arrested on January 30, examined on February 18, bound over for trial and a separate information was filed on February 19, 1959.

Thereafter, on March 4, 1959, the prosecutor moved to consolidate the cases for trial and after hearing arguments from both sides the court granted the motion.

During the trial, two of the jurors had a brief conversation with the prosecutor outside of the courtroom.

Counsel for the defendant Schram reported this to the Court and the judge conducted an examination, questioning the prosecutor and both jurors in the presence of the defendant's attorney and the court reporter.

The court denied the defendant's motion for a mistrial and permitted the trial to continue. At its conclusion the jury found both defendants guilty.

The matter is here on defendant Schram's appeal alleging the following errors:

1. The trial court exceeded its jurisdiction depriving the defendant of a fair trial and the equal protection of the laws when it granted the people's motion to consolidate the cases for trial after separate complaint, warrant examination, and information.

2. The court erred in not granting defendant's motion for a mistrial because of the improper conversation between the prosecutor and members of the jury.

3. The defendant was convicted on perjured testimony.

4. The verdict is in direct contradiction to the great weight of the evidence.

5. The Court erred in not instructing the jury to find the defendant innocent.

The fifth allegation of error needs little consideration. No motion to that effect was made, nor indeed, with the evidence of complicity which was in the record, would the court have been justified in ruling as a matter of law that the defendant was innocent. This allegation of error is without merit.

The defendant claims that the jury's verdict is 'against the great weight of the evidence'. Justice Dethmers points out that this is a civil case test--the proper test in a criminal case is whether the evidence warrants a finding of guilty beyond a reasonable doubt of the crime charged. People v. Williams (1962), 368 Mich. 494 at page 501, 118 N.W.2d 391.

Witness Seevers testified that he sold the gun to defendant Schram and one Green. Green corroborated this and also testified that Schram told him that he had been with Brock when Brock shot Piper with that gun. If believed, this testimony is ample to support a finding of guilty beyond a reasonable doubt.

So this in turn goes to the third allegation of error, viz.: that the defendant was convicted on perjured testimony.

As the defendant admits in his brief, the credibility of the witnesses is for the jury's determination but he alleges that there were contradictions which establish the perjury. Unfortunately for his position, the jury didn't so view it and the Court is powerless to tell a jury what to believe. It would serve no good purpose to list all of the authorities for the proposition that credibility of testimony is solely for the jury--since this is not actually in issue, but the principle is reaffirmed in People v. Pettijohn (1938), 283 Mich. 108, 277 N.W. 193, People v. Moore (1943), 306 Mich. 29, 10 N.W.2d 296, People v. Ranney (1943), 304 Mich. 315, page 320, 8 N.W.2d 80, page 81:

'* * * The weight to be given to the testimony produced by the people was for the sole consideration of the jury. We cannot say that its verdicts were against the great weight of the evidence. There is evidence, if believed by the jury, to warrant a conviction in this case.'

In considering the objection to the consolidation of the cases against Brock and Schram we are confronted with the case of Stuart v. People (1879), 42 Mich. 255, 3 N.W. 863.

In that case the court said, pages 259 and 260, 3 N.W. pages 865 and 866:

'No one can be informed against and put upon trial until it has been judicially determined that a crime has been committed, and that there is probable cause to believe him guilty thereof, and whether this has been done upon a joint or separate complaint, the right of the accused is fully protected. He is not put upon trial for another or different offence than the one upon which he was arrested and examined, or waived examination. He is put upon trial for the same offence, with others who, in like manner, it has been determined, jointly participated with him in the commission of the offence, and if the evidence introduced on the trial shows they acted together, they have been deprived of no legal right, and have, therefore, no just cause of complaint.'

This indicates that Michigan answers the precise question here presented as the Massachusetts court did in the case of Commonwealth of Massachusetts v. Samuel Gallo (1931), 275 Mass. 320, 175 N.E. 718, 79 A.L.R. 1380, wherein the court held that persons separately indicated could be tried jointly.

This leaves only the consideration of the discussion between the prosecutor and the members of the jury.

That such conversation was improper, unwise, and regrattable is not disputed. The question before us is whether the trial judge's refusal to grant a mistrial because of it constituted reversible error.

A motion for a mistrial, just as a motion for a new trial, puts in question the fairness and impartiality of the trial. It is an appeal to the sound discretion of the...