People v. Fowler

Decision Date19 March 1895
Citation104 Mich. 449,62 N.W. 572
CourtMichigan Supreme Court
PartiesPEOPLE v. FOWLER.

Exceptions from circuit court, Hillsdale county; Victor H. Lane, Judge.

Fred E Fowler was convicted of adultery, and excepts. Reversed.

F. A. Lyon, for appellant.

Fred A Maynard, Atty Gen., and Guy M. Chester, Pros. Atty., for the people.

LONG J.

Respondent was convicted of adultery. While the jury were being impaneled for the trial, Samuel Woodruff was called, and testified on his examination that if, upon the trial of the cause, he should find the evidence equally balanced, he would render a verdict in favor of the defendant, because, if there was any doubt in his mind, he should think the defendant would be entitled to the benefit of it. He also stated substantially that he would naturally give the defendant the benefit of the doubt. He was asked: "Would you naturally be inclined to do this?" Answer: "Yes, sir." Question "Independent of any rule of law?" Answer "Yes, sir." The people thereupon challenged the juror for cause, and he was dismissed from the panel. Defendant insists (1) that no cause as shown which authorized his dismissal from the panel; (2) that defendant's rights were prejudiced by the action of the court. If it be conceded that the ground of challenge was not sustained, yet it is evident that the defendant was prejudiced in no substantial right, inasmuch as it does not appear that the regular panel of jurors was exhausted, or that the people had exhausted their peremptory challenges, and no objection was made to the competency or impartiality of the jury which was obtained. Mining Co. v. Johnston, 23 Mich. 39; Luebe v. Thorpe, 94 Mich. 268, 54 N.W. 41. The theory of the prosecution was that on the 17th day of February, 1892, the respondent went to the house of the complainant, Mr. Peck, and there, in the absence of the husband, went into the sleeping room with Mrs. Peck, and they went to bed together, staying in bed from 9 o'clock in the morning until about noon. To prove this, the prosecution called Mr. Emmer K. Eastman, who was stopping at the house of Mr. Peck, who testified substantially: That on the date in question he went over to a grocery store, about a mile and a half away, and on returning he found no one in the house below. That he went up stairs, and heard a rustling of bed clothes. He entered the bedroom, the door of which was open, and he saw two forms in bed, covered up; the pillows in their proper place, the bedclothes all nicely tucked in on both sides of the bed. That there were no signs of any one's being there, except the two forms in the bed, all covered up; and, if respondent was there, he was in bed, all covered up,-hat, boots, and all. He went down stairs, took a newspaper, and sat down a short distance from the stair door, and stayed there until afternoon. Mrs. Peck came down stairs, and requested witness to go down cellar and get some pork. When he went down the cellar stairs, he heard two persons coming down the stairs above. He hastened back up the cellar stairs, looked out of the cellar door, and saw Mrs. Peck and respondent coming out of the stairway. On opening the case to the jury, the prosecuting attorney stated that the people would show that in the winter prior to the alleged act Mr. Peck had found the respondent concealed behind the door of his wife's sleeping room. No evidence was given on the trial to support this statement, and it is claimed that the statement was so prejudicial to the rights of the respondent that a new trial should be granted. If this were the only error in the record, we might hesitate to reverse the case on that ground. If this statement were made in good faith by the prosecuting officer, and on the trial he found that the proofs did not substantiate the statement, we do not think, for that reason alone, the case should be reversed. The prosecuting attorney may not always find that the proofs will meet the case he expects to make when he makes his opening statement to the jury, and it is not every failure of proof, under such circumstances, that warrants a reversal. In this case the fact was not proved, and the jury must be presumed to have based their verdict upon the evidence, and not upon the statement of counsel. But, as the case must be reversed upon other grounds, we presume that on another trial there will be no complaint of like character, as the prosecuting officer's duty is to explain to the jury the nature and elements of the issue that they are to try, and not to make statements that will not be supported by the evidence. The prosecution claims that when the statement was made it was expected that proofs would be allowed to support the statement, and the husband of Mrs. Peck was called to prove the...

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