People v. Kasem

• Decision Date: 03 April 1925
• Docket Number: No. 121.,121.
• Citation: 203 N.W. 135,230 Mich. 278
• Parties: PEOPLE v. KASEM.
• Court: Michigan Supreme Court

230 Mich. 278

203 N.W. 135

PEOPLE

v.KASEM.

No. 121.

Supreme Court of Michigan.

April 3, 1925.

Error to Circuit Court, Genesee County; Fred W. Brennan, Judge.

Sam Kasem was convicted of manslaughter, and he brings error. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STERRE, FELLOWS and WIEST, JJ. Chas. A. Withey and Thos. Stockton, both of Flint, for appellant.

Andrew B. Dougherty, Atty. Gen., and Harry G. Gault, Pros. Atty. and William R. Roberts, Asst. Pros. Atty., both of Flint, for the People.

SHARPE, J.

On June 24, 1923, Amin Kasem and the defendant, his nephew, were engaged in running an hotel and soft drink place in the village of Mt. Morris in Genesee county. Between 8 and 9 o'clock in the evening Alphonse Jacobs, Philip Jacobs, Ernest Jacobs, and Alex Barcey entered and asked for drinks. They afterwards had something to eat. An altercation arose over the charge for the meal. A chair was thrown, by whom is in dispute. In the mêlée that followed Ernest Jacobs testified that defendant came from an adjoining room and ‘started shooting.’ One of the shots hit the witness in the leg. A witness named Hackney, who heard the disturbance and went into the room, testified that one of the shots fired by the defendant hit Alphonse Jacobs, who ‘doubled backwards and fell.’ Alphonse was taken to a hospital, and received the attention of Drs. Randall and Graham. They discovered that a bullet had entered his back above the waist line, and was then embedded ‘just over the pit of the stomach.’ They removed the bullet. He got along ‘fairly well for about a week.’ His temperature then began rising. A ‘secondary operation’ was performed on July 8th. He died on July 16th. Both Amin and Sam were arrested. On the examination afterwards had Amin was discharged. Sam was bound over for trial. He was convicted of manslaughter, and sentenced. He here reviews the judgment of the court by writ of error. There are many assignments.

[1] 1. It is insisted that there was not sufficient proof that death resulted from the wound caused by the bullet. While Dr. Randall testified that he ‘did not examine the other vital organs at all. He may have died from a dozen or a hundred different causes independent of the gunshot wound,’ he also testified that the gunshot wound was the ‘original cause’ of death. Dr. Graham also so testified in effect. Their testimony was clearly sufficient to carry this question to the jury.

2. At the conclusion of the proofs, by agreement of counsel, the jury were taken to view the premises where the shooting occurred. They were unaccompanied except by the officer in charge. On reconvening, one of the jurors informed the court that they had ‘found another gun there.’ A conversation then occurred as to whether it was the same kind of a gun, and whether the same kind of cartridge would fit it. No suggestion of impropriety as to what occurred was then, or at any time later before verdict, suggested by defendant's counsel. Counsel now say:

‘The court was certainly wrong in peremptorily excluding the respondent and his attorneys from being present.’

The record does not clearly disclose by whom the request was made, nor what was then said by counsel. The following is all that appears:

‘At this juncture it was agreed that the jury might go to Mr. Morris and view the premises.’

The defendant was on bail. We must assume that the arrangement made was agreeable to, if not suggested by, his counsel. The statute (3 Comp. Laws 1915, § 15825) permits the court to order a view of the premises by the jury. There was discussion following the production of the gun found by one of the jurors, and whether the bullet taken from the body of the deceased would fit it.

‘Mr. Withey: You want to compare this one to see whether it is the same in size?

‘Mr. Gault: Yes, sir.

‘The Court: How are you going to do it?

‘The Juror: I don't think there is any use. I think that that is plain enough just as it is.

‘Mr. Withey: There is no issue raised on that at all.’

Amin Kasem, called as a witness by defendant, had testified that there were two guns, the one produced by the officer, and ‘another gun right back in the place where it is now in the drawer behind the counter.’ This was the one found by one of the jurors.

The danger of permitting a view by the jury, unless accompanied by the judge and the attorneys, is here well illustrated. While it is discretionary in the court to order a view, the better practice would seem to suggest that it should be done only in cases where it is uncertain whether the jury have been able to visualize the surroundings from the testimony submitted. People v. Auerbach, 176 Mich. 23, 46, 141 N. W. 869, Ann. Cas. 1915B, 557. The juror, however, merely found the revolver he produced in the place where defendant's witness had sworn that it was. It is apparent that defendant's counsel attached no significance to the incident, and we think it in no way affected the verdict of the jury.

3. On cross-examination of Sheriff Rogers by one of defendant's counsel, he sought to show that Amin Kasem soon after his arrest had made certain statements to him relative to the shooting. An objection to this by the prosecuting attorney was sustained. Amin was later called by the defendant, and testified, without objection, that, while in jail, he hold the sheriff that he did not shooting. While counsel assign error on the ruling of the court sustaining the objection, their complaint here is directed to the remarks of the prosecuting attorney in his opening argument to the jury relative to it. He said:

‘If you believe that either one of them falsified about that matter and believe several other witnesses in this case, there isn't any other conclusion you can come to in this case, if you base your conclusion on that, I say there isn't any other conclusion you can come to then but that Sam Kasem fired the fatal shot. Now, in discussing that matter you have got to go into it and consider it carefully; you have got to consider in connection with that, I say, the interest of the witnesses. You have a right to consider in connection with that that the respondent, Sam Kasem, and his uncle Amin told his story for the first time in court when they got up here after they had heard and had a chance to digest all the testimony as related by the other eyewitness of the affair. Now, they did not have to, and they did not, take the witness stand in the court below, either one of them.’

After objection, overruled by the court, counsel proceeded:

‘Now, if Amin Kasem knew or thought that these witnesses for the people who testified in the court below and who hae testified the same way here were on the wrong track or were mistaken, and there isn't any evidence that they were or that he thought so why didn't he take the witness stand in the court below and relate the story--

‘Mr. Withey: I want an exception to that.

‘Mr. Gauilt: -so that the officers, if they wanted to--

‘The Court: You can have it.‘Mr. Gault:-could take advantage of the checking up on his story at the trial when this matter was fresh by making inquiries in the village of Mt. Morris and other places and determine whether or not there might be same truth to his story so that we would know in coming in here right at the beginning.’

Both Amin and the defendant were charged in the complaint first made. On examination before the magistrate there was proof, as here, that the defendant did the shooting. Amin, being in no way connected with the commission of the crime, was discharged. They were both sworn as witnesses on the trial. Amin testified, as before stated, that he did the shooting. Defendant testified that he was not in the room when the first shot was fired, and that he did not know who fired the shots. It was the claim of the prosecuting attorney, as indicated by his argument, that Amin, after his discharge, concluded to take the blame upon himself. Defendant's counsel very ably answered the argument of the prosecutor. We are loath to treat what occurred as reversible error under the majority holding in People v. Prevost, 219 Mich. 233, 189 N. W. 92.

4. Error is assigned upon the charge. It is said that it consisted largely in reading the prosecuting attorney's requests. The question is: Was the law applicable to the facts properly stated? If so, this court is not concerned with whether given by the court in its own language or in that preferred by counsel. As the defendant was convicted of manslaughter, we do not consider the errors assigned on the instructions given applicable to the charge of murder.

It is urged that defendant's right to defend himself was not properly submitted to the jury. The following was eliminated from one of defendant's requests:

‘If Amin was assaulted and struck as he says he was, the shooting was justified, and you should acquit.’

The charge of the court as to self-defense was very explicit, and fully protected defendant's rights in that respect. It was somewhat difficult to present, owing to the positive, denial of both the defendant and his uncle, that the defendant had a revolver or fired a shot. After instructing the jury that the defendant might protect himself from danger to his life or ‘from such serious bodily harm as would give him a reasonable apprehension that his life was in immediate danger,’ and that ‘a man may defend his family, his servants, or his master, whenever he may defend himself,’ he further said:

‘So, if you find from the evidence in the case and all its surroundings that the truth on that subject is with the defense, then the shooting was justified, no matter which one of the Kasems did it, because either had a right to protect their domicile, their property, and their persons, or the persons of one another to any extent necessary to repel their assailants.’

We find no reversible error in the charge as given.

5. Error is assigned upon the denial of defendant's motion for a new trial. Before...