Bashford v. People
| Decision Date | 09 January 1872 |
| Citation | 24 Mich. 244 |
| Court | Michigan Supreme Court |
| Parties | Solomon A. Bashford v. The People |
Heard January 3, 1872
Error to Midland circuit.
Conviction set aside, and a new trial awarded.
Clark & Day, for the plaintiff in error.
Dwight May, Attorney-General, for the people.
The defendant is confined in state prison on a conviction for manslaughter. The errors assigned upon the record which we deem it material to consider, are two:
First That he was prosecuted by the judge of the court, who appeared and took charge of the case as the assistant of the prosecuting attorney, having first called in another circuit judge to hold the court and preside at the trial; and second, that the prosecution was permitted, under pretense of refreshing the recollection of a witness, to read to him, in the presence of the jury, his evidence given on a previous occasion, and then to question him upon it.
The appearance of the circuit judge for the prosecution seems to have been against the remonstrance of the plaintiff in error, and as we understand the statute (Comp. L., § 4066), was plainly forbidden by it. This point does not appear to be seriously contested by the attorney-general, but he assigns two reasons why the conviction should not be set aside for this cause. The first of these is, that the judge had previously sent in his resignation, which was to take effect five days thereafter, and consequently, for all practical purposes, had ceased to be judge. This was probably the view of the judge himself, who doubtless intended to act no more officially, and who, looking upon himself as having again returned to the bar, took part in the case without the least intention of violating any rule of propriety. The rule of the statute, however, was imperative, and did not depend at all upon any other circumstance than the present possession of the office. One in for five days was just as much judge as one in for five years; and he might at any moment, if he had seen fit, have resumed the seat upon the bench which was being temporarily occupied by one acting in his stead and at his request.
The second reason assigned by the attorney-general against reversing the judgment on this ground, is, that the error was one which could not injure the prisoner, inasmuch as, in legal contemplation, it could make no difference to him whether he was prosecuted by one counsel or by another. This reason is plausible, but we do not think it sound.
The law aims, as far as possible, to give every man a trial that shall not only be fair, but as free as may be from any suspicion of partiality or undue influence. It is quite true that official position could not have any tendency to render the opinions or arguments of the counsel intrinsically any more sound or plausible, but when they were to be addressed to a jury whose members were accustomed to receive and obey the instructions of the counsel as a judge, it is not unreasonable to suppose that that circumstance may insensibly, in their minds, have given to them additional force and influence. Such an influence, even the best jurors would have found it difficult sufficiently to be on the guard against; quite as difficult, perhaps, as they would to throw off or lay aside such preconceived opinions of the merits of the case as...
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