People v. Foley, 60
| Citation | 300 N.W. 119,299 Mich. 358 |
| Decision Date | 06 October 1941 |
| Docket Number | No. 60,June term.,60 |
| Parties | PEOPLE v. FOLEY. |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE
Susan Foley was convicted of receiving money from the earnings of a prostitute, and she appeals.
Affirmed.
Appeal from Recorder's Court of Detroit; Joseph A. Gillis, judge.
Argued before the Entire Bench.
Herbert J. Rushton, Atty. Gen., for Michigan, and William E. Dowling, Pros. Atty., for Wayne County, and Ralph E. Helper, Asst. Pros. Atty. for Wayne County, both of Detroit, for the People.
Benjamin C. Stanczyk, of Detroit (George Schudlich, of Detroit, of counsel), for appellant.
Defendant was convicted of receiving money from the earnings of Mary Miller, a prostitute, in violation of Act No. 328, Pub.Acts 1931, § 457, Stat.Ann. § 28.712.
At the trial (June 3, 1940) Mary Miller was sworn as a witness for the People. On direct examination she testified that she had engaged in acts of prostitution in defendant's house, and had paid defendant one-half of the regular charge she made for each act. On cross-examination this witness was confronted by defendant's counsel with statements made by her on two previous occasions, one before the grand jury on January 8, 1940, and one before Judge Skillman at the preliminary examination in the case at bar on March 15, 1940, in which statements witness had denied that she had ever engaged in acts of prostitution in defendant's house, or ever given defendant any part of her earnings as a prostitute.
Thereupon a shorthand reporter attached to the one-man grand jury then being conducted in Detroit was introduced as a witness for the People, and he testified from his notes as to a statement made by the previous witness (the Miller woman) on January 4, 1940, before an assistant prosecuting attorney attached to the grand jury. This statement tended to corroborate the testimony of the witness Mary Miller given on direct examination on the trial, and conflicted with the two statements with which defense counsel had confronted her on cross-examination. Defendant's counsel objected to the statement of January 4, 1940, on the ground that the witness (the stenographer) was bound by oath to secrecy as to all proceedings before the grand jury. The witness explained that the statement was not grand jury testimony, but merely an information-giving disclosure, not under oath, made by the Miller woman to the special assistant prosecuting attorney. The court admitted the statement, and defendant, on appeal, has abandoned the objection made to it in the trial court.
For the first time on appeal, however, defendant now raises the entirely different objection to the admissibility of this statement that it was incompetent to corroborate the witness Miller, because it was hearsay, she was not hostile, and had not been impeached. Assuming that there is merit in the claim of law made by defendant's counsel, and that the facts are as claimed by him, the legal question now raised will not be considered, since it was not raised in the trial court. People v. Moore, 86 Mich. 134, 48 N.W. 693;People v. Peck, 147 Mich. 84, 110 N.W. 495;People v. Harvey, 220 Mich. 226, 189 N.W. 925. See also, collation of cases in 1 Gillespie, Michigan Criminal Law and Procedure, § 661.
The second claim of error made by defendant relates to the admission of evidence of previous arrests of defendant, not resulting in convictions, for the purpose of impeaching her credibility as a witness.
On direct examination defendant testified that she had been convicted of a prohibition violation. On cross-examination, when asked:
she volunteered the reply:
Again, on being asked how many times she had been convicted out of a former home, she answered:
No more damaging testimony could have been drawn out by further questions. No objection was raised, not is there any intimation that defendant did not understand the questions because of her poor knowledge of the English language.
On direct examination, she testified:
On cross-examination she admitted having been arrested with ...
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...of this opinion signed the Hoffman opinion and now confesses that he was wrong. 17 It is based upon a misreading of People v. Foley (1941), 299 Mich. 358, 300 N.W. 119. In Foley, the defendant was charged with accepting the earnings of a prostitute. The defendant testified, on direct examin......
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...accusations or indictments not resulting in conviction. State v. Bigler, 138 Kan. 13, 23 P.2d 598 (1933), and People v. Foley, 299 Mich. 358, 300 N.W. 119 (1941). In 20 A.L.R.2d at 1444, the commentator refers to three jurisdictions where a distinction had been drawn 'between a mere accusat......
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