24 N.W.2d 176 (Mich. 1946), 52, People v. Inman

Docket Nº:52.
Citation:24 N.W.2d 176, 315 Mich. 456
Opinion Judge:CARR, Justice.
Party Name:PEOPLE v. INMAN.
Attorney:McGregor & Traycik, of Flint (Smith & Cumings, of Flint, of counsel), for appellant. John R. Dethmers, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Herbert Hertzler, Pros. Atty, of Tawas City, for appellee.
Judge Panel:Before the Entire Bench. STARR, J., took no part in this decision.
Case Date:September 11, 1946
Court:Supreme Court of Michigan
 
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Page 176

24 N.W.2d 176 (Mich. 1946)

315 Mich. 456

PEOPLE

v.

INMAN.

No. 52.

Supreme Court of Michigan

September 11, 1946

Page 177

[315 Mich. 459] Appeal from Circuit Court, Iosco County; Herman Dehnke, judge.

George Inman was convicted for statutory rape, and he appeals.

Affirmed.

Before the Entire Bench.

McGregor & Traycik, of Flint (Smith & Cumings, of Flint, of counsel), for appellant.

John R. Dethmers, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Herbert Hertzler, Pros. Atty, of Tawas City, for appellee.

CARR, Justice.

Defendant was tried and convicted by a circuit court jury under an information charging [315 Mich. 460] him with the crime of statutory rape* on his nine-year-old daughter, Rosalie Inman. The offense was charged to have been committed in Plainfield township, Iosco county, September 6, 1942. The prosecution was instituted by complaint made by the mother of the girl on April 3, 1944. The girl Rosalie, hereinafter referred to for brevity as the prosecutrix and as the complaining witness, testified that she did not disclose defendant's conduct until a short time before the complaint was made, claiming that defendant told her not to do so, and that he threatened to kill both prosecutrix and her mother if his conduct was revealed. In the spring of 1944 defendant and his wife had separated and the girl, Rosalie, was living with a married sister. Rosalie claimed in her testimony on the trial that she was informed that defendant was planning to obtain her custody, that she was greatly disturbed by such information, and that she told her mother of defendant's prior misconduct.

For some time prior to and on the date alleged in the information prosecutrix and her mother lived in a cabin near Hale,

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Michigan. Defendant worked in Bay City during the week, but usually spent his week-ends at the home. There were no facilities for obtaining water at the cabin where the parties resided and they, customarily, went to an adjoining vacant farm, known as the 'Hutchinson place,' for that purpose. On the day of the alleged offense the girl, Rosalie, went with defendant for the purpose of obtaining water. She testified that after the water can had been filled she and defendant went behind a shed on the premises and that defendant there committed the offense charged against him. She claimed further that following the act of intercourse[315 Mich. 461] she heard her mother calling her and that she ran to meet her mother Mrs. Inman corroborated the testimony of Rosalie in this respect, testifying further that the girl was crying as she came toward her. Rosalie also claimed other acts of like character on defendant's part prior to September 6, 1942. Defendant testified in his own behalf, denied his guilt of the offense alleged in the information, and also denied the other acts to which Rosalie testified.

Following the verdict of the jury defendant moved for a new trial, asserting that the verdict was against the weight of the evidence, that prejudicial errors were committed in the course of the trial, and that he had obtained newly discovered evidence which might raise a reasonable doubt as to his guilt on a retrial. The motion was denied, sentence was imposed by the trial court, and defendant has appealed.

After the case had been submitted to the jury, counsel for defendant advised the court that he wished to make a trip to Dearborn, Michigan. The court consented to counsel's departure, stating, in substance, that if the jury desired additional instructions, the charge as given would be repeated. Thereupon counsel left the court for the purpose of making the desired trip. In his absence the jury requested that certain testimony be read to them. Defendant objected on the ground that his attorney was not present. On behalf of defendant it is claimed that his counsel would have objected to the reading had he been present. In accordance with the request of the jury testimony given by Mrs. Inman, the mother of Rosalie, with reference to the girl crying as she came to the witness following the commission of the alleged offense, was read, following which the jury again retired for further deliberation. [315 Mich. 462] The record does not indicate that there was any cross-examination on the specific matter referred to by the jury in the request.

On behalf of defendant it is claimed that the reading of the testimony in the absence of defendant's counsel constituted prejudicial error. No claim is made, however, that defendant objected to the departure of his counsel and the record fairly justifies the conclusion that he consented thereto. It is scarcely conceivable that counsel would have departed from the county without advising his client as to his contemplated action and without obtaining the client' approval or, at least, his acquiescence. Neither does it appear from the record before us that if counsel had been present in court he could or would have interposed any well-founded objection to the reading of the testimony.

In 23 C.J.S., Criminal Law, § 980, p. 321, it is said:

'An accused is entitled to the presence and assistance of counsel at every stage of the trial; but it has been frequently held not to be error to proceed with the trial in counsel's absence if the accused is not thereby prejudiced.'

In People v. Kasem, 230 Mich. 278, 203 N.W. 135, the jury, after submission of the case, returned to the court room and asked to have the testimony of a certain witness read to them. Counsel for defendant objected unless the testimony of two of defendant's witnesses was also read. It was held, in affirming the conviction, that defendant was not entitled to have his request granted as a matter of law and that there was no abuse of discretion on the part of the trial court in permitting the reading of the testimony of plaintiff's witness.

In People v. Digione, 250 Mich. 206, 229 N.W. 421, 422, the trial court in charging the jury said:

[315 Mich. 463] "And if, at any time, there is a difference of opinion as to what the evidence is

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in the court, we have it all taken down and the stenographer will read it to you. Any point that you are differing about. Or, if you differ about the law, on any one question and one man says the court said so and so, and other says, no, the court said so and so. Well, come in, and I will have the charge read to you."

During their deliberations the jury returned for further instructions and part of the charge as given was read in response to their request. It was held that this was not error, and the conviction was affirmed.

In People v. La Munion, 64 Mich. 709, 31 N.W. 593, a portion of the charge as given by the court was read to the jury in the absence of both defendant and his counsel. It was held that defendant was not prejudiced by such action, citing, among other cases, Smith v. Kelly, 43 Mich. 390, 393, 5 N.W. 437. It was stated that the trial court 'kept clearly within the rule which should govern in such cases.' [64 Mich. 709, 31 N.W. 596.] See, also, Behrendt v. Wilcox, 277 Mich. 232, 269 N.W. 155; Rich v. Daily Creamery Co., 303 Mich. 344, 6 N.W.2d 539. The general rule is summarized in 53 Am.Jur., p. 666, as follows:

'Independently of statute, according to the majority rule, the trial court, at the jury's request and over objection, may have the reporter read the testimony of a witness, including, in a criminal case, the testimony of the state's most important witness, or it may from its minutes state the substance of testimony.'

Under the circumstances presented in the instant case it is apparent that defendant was not prejudiced by the absence of his counsel at the time the testimony in question was read to the jury. It was not incumbent on the court to delay the trial until [315 Mich. 464] counsel returned before passing on the jury's request. Counsel took his departure with the permission of the court and, presumably, with the consent of the defendant, and the court was fully justified in proceeding in counsel's absence. The request of the jury for the reading of the specific testimony was properly granted.

Error is also assigned on the admission of the testimony of a physician who made a physical examination of Rosalie Inman approximately two months before the trial and nearly two years after the commission of the alleged offense. As before stated, the criminal prosecution against defendant was instituted in April, 1944. It is the claim of the people that the delay was due to the admonitions and threats of defendant, to which Rosalie testified on the trial. It was her testimony, also, that she had not had sexual relations with any man, or boy, other than defendant. The...

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