Brownell v. People

• Decision Date: 04 June 1878
• Citation: 38 Mich. 732
• Court: Michigan Supreme Court
• Parties: Aaron Brownell v. The People

38 Mich. 732

Aaron Brownell v. The People

Supreme Court of Michigan

June 4, 1878

Submitted April 12, 1878

Error to Branch.

Information for murder. Defendant brings error.

Judgment reversed, and a new trial ordered.

John B Shipman and W. J. Bowen for plaintiff in error. In a trial for killing an assailant it is proper to show that he was regarded as a dangerous man, People v. Eastwood, 14 N. Y., 562; Beaubien v. Cicotte, 12 Mich. 459; Lund v. Tyngsborough, 9 Cush. 36; Culver v Dwight, 6 Gray 444; Hardy v. Merrill, 56 N. H 227; 1 Whart. Ev., §§ 511-12; evidence of the general good character of a person accused of crime cannot be met by proof of acts that are not a part of the offense charged, Wharton on Homicide, §§ 592, 594; 1 Whart. Ev., § 564; Reg. v. Rowton, 2 Lead. Crim. Cas., 333, 341; Griffin v. State, 14 Ohio St., 55; Com. v. O'Brien, 20 Amer. 325.

Attorney General Otto Kirchner for the People declined to support the conviction.

OPINION

Campbell, C. J.

Brownell was convicted of murder in the second degree, for killing one Marvin H. Bailey on the 5th day of July, 1876. The fatal shot was given upon an actual or threatened assault made by Bailey on Brownell, while the latter was on his way home from a place where both had been present, and Bailey's conduct was wanton and ugly, and without any adequate occasion, if there was any appearance of occasion.

On the 6th of July Brownell was arrested and held for examination. On the 26th the justice returned the depositions to the circuit court for the county of Branch, the homicide being in Quincy in that county. On the 1st of May, 1877, the information was filed, and on the same day plaintiff in error was arraigned and brought to trial. Before pleading he moved to quash the information on four grounds, which were in brief: 1. That the return does not show the commission of the crime charged; 2. It does not aver probable cause to believe the defendant guilty; 3. It does not show whether bail was fixed, or the offense deemed bailable; 4. It does not appear the defendant was committed for trial on the charge. The motion was overruled.

The offense charged was murder, and inasmuch as the indictment or information does not state the degree, which must be found by the jury, there seems to be no defect in a commitment which describes the offense as it is charged. Upon a question of bail, the real character of the charge and the degree must in some way appear, inasmuch as murder in the second degree is bailable by a justice. Comp. L., § 7868. The statutes are certainly not in a very satisfactory shape, but we think it would be going too far to hold a commitment bad, for terms which would be good in an indictment.

The objection that the justice used the phrase "cause to suspect" instead of cause to believe, has some apparent reason in it, and certainly the statute does not contemplate a commitment upon evidence that does not make out a prima facie case of guilt. But we do not think the language of the statute, requiring probable cause "to believe" the prisoner guilty was intended to introduce any new rule. The common law term in such cases was "suspicion" and not "belief," and the habeas corpus act refuses the statutory writ of right in cases where persons are committed on "suspicion" of felony or treason. Comp. L., § 6994. Although the terms are not strictly synonymous, the statutes seem to use them in the same sense.

The question of bail does not seem to us to be important upon a motion to quash. The objection that the commitment does not state the party is to be held "for trial," as required by § 7860, is also one which would have weight if the precedents had not very generally omitted such a phrase. It seems to have been quite generally taken for granted that a justice's commitment was by inference to be so understood.

No point seems to have been taken on the trial, and no error is alleged, upon the somewhat remarkable delay in filing the information, and extreme haste in urging it on when filed. While the proceeding unexplained appears peculiar, to say the least, yet we cannot consider it on this record, and it may be open to a satisfactory explanation.

An objection made to a ruling compelling a witness to answer questions touching his deposition without showing or reading it to him,--and which is claimed to be within Lightfoot v. The People, 16 Mich. 507, becomes unimportant, from there being no attempt at impeachment.

The defense rested upon the grounds among others, that Brownell used a pistol to repel an assault which was not only violent in fact, but made by a powerful man of dangerous temper, who had made threats against him. Looking at the case in a common-sense light, we cannot avoid seeing that any person would naturally be more in fear of a man of that sort than of a quiet or a weaker man, and would in case of an attack from him, feel a greater need of extreme measures to protect himself and resist his adversary. Inasmuch as every one finds his excuse in facts as they honestly appear to him, such important facts as these cannot be disregarded.

The witnesses who were examined, or offered for examination, and whose testimony was excluded as inadmissible, were personally familiar with both parties and capable of forming opinions about their relative strength, tempers, and other personal qualities, not capable of any description except by opinion. We think this testimony should have been received and not struck out. Hurd v. People, 25 Mich. 405.

It appears to us that the testimony of one called as an expert upon the effect of a pistol shot upon the clothing when fired at a certain distance, was based on too small an...