People v. De Haven

• Decision Date: 18 May 1948
• Docket Number: No. 78.,78.
• Citation: 32 N.W.2d 468,321 Mich. 327
• Parties: PEOPLE v. DE HAVEN.
• Court: Michigan Supreme Court

321 Mich. 327

32 N.W.2d 468

PEOPLE

v.DE HAVEN.

No. 78.

Supreme Court of Michigan.

May 18, 1948.

Appeal from Circuit Court, Allegan County; Fred T. Miles, judge.

Henry De Haven was convicted of rape upon a 13-year-old female, and he appeals.

Reversed and remanded for new trial.

Before the Entire Bench.

Leo W. Hoffman, of Allegan, Michigan, for respondent-appellant.

Eugene F. Black, Atty. Gen., and Chester A. Ray, Pros. Atty., of Allegan, for the People.

SHARPE, Justice

The defendant, Henry DeHaven, was tried and convicted of having committed the crime of rape upon Marilyn Kahre his 13 year old stepdaughter.

Defendant married Ethel DeHaven, mother of the complaining witness, in December 1941. At that time Marilyn was living with her grandparents in Indiana. Shortly after his marriage, defendant, his wife and Marilyn moved to Indiana where they lived until November 1945 when they moved to a farm in Allegan county, Michigan. At the trial, the complaining witness testified that she had sexual relations with defendant in Indiana and from four to ten times while they lived on the farm in Allegan county. She testified that on the afternoon of December 1, 1946, she and defendant climbed a ladder to an open room under the roof of the barn, remained there about 15 or 20 minutes and had sexual intercourse.

The cause was submitted to a jury who returned a verdict of guilty. Defendant made a motion for a new trial and among the reasons given are the following:

‘Because the juror, William Haverdink, failed to disclose when examined by the Court that a member of his family had been sentenced to life imprisonment for a similar offense.

‘Because the juror, John Bouws, failed to disclose in response to the question by the Court that a member of his family had been sentenced for life for a similar offense.’

The trial court denied the motion for a new trial and defendant appeals alleging as reasons therefore the errors as claimed in the motion for a new trial.

When the cause came on for trial, the court read the information to the jury and explained the meaning of the crime of statutory rape. He then questioned the jurors as a group as to whether any of them had any experience with any criminal case and as to whether any of their relatives had been involved in a similar case or any case involving the crime of rape. All 12 jurors answered in the negative. One of the jurors in the jury box at that time was John Bouws. A juror was excused and a juror by the name of William Haverdink was sworn and took his place. The court then asked the following questions and received the following answers:

‘The Court: Mr. Haverdink, you heard my questions?

‘Mr. Haverdink: I did.

‘The Court: And you know anything about the case?

‘Mr. Haverdink: I do not.

‘The Court: Know any of the parties?

‘Mr. Haverdink: No.

‘The Court: Have any business with any of the attorneys?

‘Mr. Haverdink: No. I didn't.

‘The Court: Do you know of anything that might interfere with your fair and impartial trial of this kind of case?

‘Mr. Haverdink: I don't.

‘The Court: There is nothing about anything that has happened to any members of your family that would make you feel different about this case than others?

‘Mr. Haverdink: No. ‘The Court: You feel in this case you could sit in this case fairly and impartial?

‘Mr. Haverdink: I can.

‘The Court: There is no other case you heard about or know about would influence your verdict in any way?

‘Mr. Haverdink: No.

‘The Court: Do you have a daughter, do you?

‘Mr. Haverdink: I have daughters, but they are all married.

‘The Court: Well, yuou think that would make any difference in this case?

‘Mr. Haverdink: It wouldn't.

‘The Court: Do you know any of these parties I have named here as witnesses?

‘Mr. Haverdink: No, I don't.

‘The Court: Have you any challenge now?

‘Mr. Ray: No.’ $The jury, including the jurors Haverdink and Bouws, was then sworn and the trial proceeded. It appears tht the juror Haverdink is a cousin and the juror Bouws is a brother-in-law to a man named William Haverdink who was sentenced for statutory rape by the circuit court of Ottawa county in 1939. The record in that case discloses that William Haverdink committed rape upon his 13 year old daughter as well as four other daughters.

The trial court in denying the motion for a new trial stated in regard to the failure of juror William Haverdink to disclose that a member of his family had been sentenced to life imprisonment for a similar offense:

‘He was no asked this question; he was under no obligation to disclose such fact; he stated he had no prejudice in this kind of a case; there is nothing to indicate he did have; certainly, if he did have, it would be likely to benefit respondent.’

The trial court gave a similar answer to the failure of John Bouws to make such disclosure.

In 39 Am.Jur. pp. 65, 66, § 45, under the subject of ‘New Trial’ we find the following:

‘It seems generally agreed that when matters which might establish prejudice or work a disqualification of a juror are actually gone into upon the voir dire examination and false answers are given or deception is otherwise practiced, as the result of which a juror, although disqualified in fact, is accepted, the party misled or deceived thereby, upon discovering the fact of the juror's incompetency or disqualification after trial, may assert that fact as ground for and obtain a new trial, upon a proper showing of such facts, even though, it has been held, the bias or prejudice is not shown to have caused an unjust verdict; it is sufficient that a party, through no fault of his own, has been deprived of his constitutional statutory guaranty of a trial of his case before a fair and impartial jury.’

In 31 Am.Jur. pp. 638, 639, § 108, under the subject of ‘Testimony of Juror as to Own Competency’ we find the following:

‘Examination into the competency of a juror, when he is challenged, is essentially a taking of such prospective juror's testimony to determine whether he has the statutory qualifications of a juror and is free from prejudice or interest, and to ascertain whether it is wise and expedient to exercise the right of peremptory challenge given to parties by the law. * * * He is not, however, the judge of his own competency, impartiality, and freedom from prejudice, in the sense that his testimony is to be accepted as final and conclusive of the issue, and no statute can clothe him with such judicial discretion and power. His competency is...