People v. Hoffman

Citation1 Mich.App. 557,137 N.W.2d 304
Decision Date18 October 1965
Docket NumberNo. 81,No. 2,81,2
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee. v. Charles F. HOFFMAN, Defendant-Appellant. Cal
CourtCourt of Appeal of Michigan (US)

R. William Reid, Lansing, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald L. Reisig, Pros. Atty., Ingham County, Leo A. Farhat, Special Asst. Pros. Atty., Lansing, for appellee.

Before GILLIS, P. J., and T. G. KAVANAGH and QUINN, JJ.

T. G. KAVANAGH, Judge.

On November 9, 1963, the defendant, Charles F. Hoffman, shot and killed Marion Leo Bodo. Charged with first degree murder, he pleaded self defense, and the jury returned a verdict of second degree murder. Defendant appeals, making five assignments or error:

First defendant claims it was error for the prosecutor to ask defendant on cross examination if he was presently under arrest for additional offenses.

The defendant admits that under the statute prior conviction of a crime may be shown to test the credibility of a witness, C.L.S.1961 § 600.2158 (Stat.Ann.1962 Rev. § 27 A.2158) but claims arrests without convictions may not be so shown. However, the Supreme Court in the case of People v. Foley (1941), 299 Mich. 358, 300 N.W. 119 specifically allowed, on cross-examination, a showing of previous arrests in order to attack the credibility of the defendant testifying. In the case at bar, Hoffman was questioned on cross-examination about his previous arrests. In Foley, supra, the trial judge instructed the jury that the only purpose for which they could consider the evidence was to test the credibility of the defendant as a witness and that the prior arrests had nothing to do with the guilt or innocence of the defendant in the present case. The trial judge here instructed the jury in substantially the same manner. Foley allows the examination in the sound discretion of the trial judge. The first question raised by defendant is without merit.

Next defendant says it was error to fail to provide defendant with counsel when first arrested November 20, 1963.

The defendant maintains that his constitutional rights were violated because 1) he was interrogated from November 20th to November 29th about Bodo while under arrest on another charge and 2) that counsel was not present while he was being interrogated. Under the authority of Escobedo v. State of Illinois (1963), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, defendant therefore argues that no statement elicited by the police during the interrogation may be used against him at his trial.

The defendant claims his arrests were by way of subterfuge to interrogate him. There is no proof of this allegation. There was no attempt to contradict testimony to the effect that Hoffman was questioned generally about Bodo on November 20th and that the next interrogation about Bodo was at Hoffman's request through his attorney, on November 29th. Defendant does not state the testimony he would exclude because of the alleged improper interrogation.

We do not agree with the defendant's interpretation of Escobedo. As we read it, Escobedo holds it is a denial of due process to deny defendant's request for counsel. No request and denial was shown here. On the contrary it appears that when first specifically questioned about the crime with which the defendant was here charged defendant had already consulted counsel. No reversible error is shown here.

Defendant next claims error in that certain 'smart remarks' of the prosecutor prevented him from having a fair trial.

Upon a reading of the remarks in context it is clear that no instance separately or all cumulatively could constitute reversible error. In People v. Burnstein (1933), 261 Mich. 534, at page 538, 246 N.W. 217, at page 218 the court stated:

Great care should betaken by prosecuting officers and trial courts that no statement be made in the presence of jurors which would jeopardize a defendant's right to a fair trial. But in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused.'

Burnstein, supra, is quoted with approval in People v. Logie (1948), 321 Mich. 303, 32 N.W.2d 458,...

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15 cases
  • People v. Brocato
    • United States
    • Court of Appeal of Michigan — District of US
    • May 5, 1969
    ...is not the issue, just an arrest.' The People attempt to justify the foregoing cross-examination by referring to Peeople v. Hoffman (1965), 1 Mich.App. 557, 137 N.W.2d 304, for the proposition that questions about arrests may be asked. But Hoffman said they could be asked only In the discre......
  • People v. Eddington
    • United States
    • Court of Appeal of Michigan — District of US
    • April 24, 1970
    ...I am charged with another one, yes.' The People attempt to sustain the foregoing cross-examination by referring to People v. Hoffman (1965), 1 Mich.App. 557, 137 N.W.2d 304. In Hoffman, it was held that questions about pending charges could be asked, but only in the discretion of the trial ......
  • People v. Davis
    • United States
    • Court of Appeal of Michigan — District of US
    • January 19, 1971
    ...would have been prejudicial to defendants. In addition to the fact that Brocato, supra, repudiating the holding in People v. Hoffman (1965), 1 Mich.App. 557, 137 N.W.2d 304, was decided subsequent to decision in the instant case, the trial court's ruling in Brocato, reviewed by this Court, ......
  • People v. Williams, Docket No. 12398
    • United States
    • Court of Appeal of Michigan — District of US
    • July 31, 1972
    ...Criminal Evidence (12th ed.), § 144, p. 268.7 See People v. Morlock, 233 Mich. 284, 286, 206 N.W. 538 (1925); People v. Hoffman, 1 Mich.App. 557, 561, 137 N.W.2d 304 (1965); People v. Badge, 15 Mich.App. 29, 32, 165 N.W.2d 901 (1968).8 See People v. Rasmus, 8 Mich.App. 239, 154 N.W.2d 590 (......
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