Brown v. People

• Citation: 17 Mich. 429
• Court: Supreme Court of Michigan
• Decision Date: 23 October 1868
• Parties: William Brown v. The People

17 Mich. 429

William Brown v. The People

Supreme Court of Michigan

October 23, 1868

Heard October 22, 1868 [Syllabus Material]

Error to Ionia circuit.

The plaintiff in error was convicted of the murder of one John Morse.

Several exceptions were taken to the rulings of the court, respecting the admission of certain evidence, all of which are stated in the opinion.

Judgment reversed, and a new trial ordered.

S. B Soule, and T. Romeyn, for plaintiff in error:

1. It is error to admit immaterial evidence before a jury, and without regard to whether they are instructed afterwards to disregard it or not: 13 Johns. 350; 15 Id. 240; 2 Cow. 436; 19 Wend. 232; 9 Barb. 618; 10 B. Mon., 16; 35 Miss. 165; 2 Tex. 257; 10 B. Mon., 316; 21 Pick. 142; 22 Id. 427, 457, 397; 33 N. H., 171; 38 Id. 318; 2 Fost. 457; 2 Aik. 276; 3 Smeed 86; 1 Munf. 288; 32 N. Y., 141, 509; 19 Id. 299; 31 Ala. 53; 33 Miss. 118.

2. It is the duty of the court to see to it that no mischief is done by the admission of incompetent evidence, and that the illegal evidence be wholly withdrawn, and withdrawn for every purpose: 5 S. & R., 352; 1 Penn. 389; 31 Id. 196; 8 W. & S., 391; 24 Pick. 12; 9 Gray 408; 14 Mich. 260.

In criminal causes the defendant in such causes can not by silence waive any of his rights: 18 N. Y., 128; 16 Mich. 351.

3. Evidence was introduced to sustain a witness previously sworn, by showing that he had stated the substance of his testimony to other persons.

This was not competent evidence; it was hearsay, and is not within any of the exceptions to that kind of testimony: 1 Greenlf. Ev., §§ 98, 99; 7 Cranch 290, 295; 1 Wheat. 6, 8; 3 T. R., 707.

4. The defendant sought to sustain his alibi by offering proof in reply to the rebutting evidence of the people. The court rejected it. This was error: 5 Allen (Mass.), 314; 32 Vt. (3 Shaw), 591; 28 Ga. 237; 8 Humph. 663.

G. V. N. Lothrop, and A. B. Morse, for defendants in error:

1. The first error alleged was the proof admitted as to a peculiar smell observed at the stable at the time of the discovery of the body. There was evidence tending to show that the odor was that of chloroform.

The evidence was proper.

All the surrounding circumstances noticed at the time of the discovery of the body were proper evidence. Indeed, it would be censurable to withhold any one of any peculiarity. These circumstances furnish the foundation on which all subsequent investigation must proceed. Whether any given circumstance shall finally bear one way or the other, is of no consequence.

2. It is competent to sustain a witness by showing that the had stated to other parties at a given time the same thing sworn to by him. The question is not as to the truth of what was stated, but only the fact of its having been said, and when said: 1 Dutch. 566; 1 Greenlf. Ev., §§ 109, 123; 34 Vt. 604.

3. It is well settled that a party entering on a matter should offer all his evidence relating to it. He can not rest, and, after the other side have replied, then resume and give further proof: 1 Greenlf. Ev., § 74; 2 Stark. 31; 11 Pick. 125.

4. A new trial will not be granted because of evidence with reference to a future state of the case. And if evidence is admitted which can only become competent by the introduction of other evidence, no exception lies unless it clearly appears that such further evidence was not introduced: 30 Vt. 252; 27 Geo. 125; 4 Allen (Mass.), 22; Hilliard N. T., 324.

OPINION

Cooley Ch. J.:

The plaintiff in error was convicted of the murder of one John Morse. The circumstances of the case were very peculiar. Morse, it appears, was found, on the morning of August 1, 1867, suspended by a strap around his neck, lifeless but still warm. The appearances indicated a suicide, but the theory of the prosecution was that he was first made insensible by other persons, and then suspended, and the surroundings arranged to give these appearances. The first error alleged in the record relates to the evidence of Henry J. Hall, who having found the body of the deceased, testified to its condition and surroundings, and thereupon, to quote from the record, "the counsel for the people claiming that John Morse was first made insensible by chloroform, and then hanged and killed, offered to prove by the witness that on the morning he found John Morse hanging in the stable, he smelled a peculiar smell about the stable and barn; to the admission of which evidence the counsel for the defendant did then and there object, on the ground that simply proposing to prove a peculiar smell was too vague and indefinite, and the counsel for the people then said they intended to show that the said smell was the odor of the chloroform; and the counsel for the defendant insisted upon the objection that the proposition was too vague and indefinite, and therefore irrelevant; and the said circuit judge overruled the objection, and the defendant's counsel then and there excepted. And the said Henry J. Hall testified that he smelled a peculiar smell, and did not know what it was like." Other similar evidence was allowed to be given by other witnesses, none of whom could tell at the time what the odor was, but one of them testified that having smelled a bottle of what she was told was chloroform, some five months afterwards, she found that the odor was the same as that about the barn on the morning in question. No further evidence was given on the subject, and it was not claimed that there was any testimony to indicate that the death was preceded by the administration of chloroform, beyond that above stated.

When the cause was given to the jury by the circuit judge, he did not instruct them to disregard the above evidence, nor was he requested to do so. The plaintiff in error claims that his objection was a valid one when taken, and that its force could not be avoided, except by evidence, subsequently in some way connecting him with the chloroform. The prosecution, on the other hand, claim that they had a right to give the evidence as a part of the circumstances surrounding the discovery of the body, whether it had any tendency to connect the plaintiff in error with the death or not; and they also claim that, if it had been offered as one link in the chain of evidence connecting the plaintiff in error with the alleged homicide, it would nevertheless, at the time, have been admissible, and, if they failed to follow it up by other evidence, the plaintiff in error should have requested the judge to instruct the jury to disregard it, and excepted to his ruling if he failed to do so; and that, not having done so, the record discloses no error of which he has put himself in position to complain.

When a person is accused of a felonious homicide, it is both the right and the duty of the prosecution to give evidence of all those surrounding facts and circumstances which have any bearing upon the manner of the death, and any tendency to show whether it was natural, accidental, or felonious, and if the latter, whether the deceased was felo de se, or died by the hand of another. It is both a right and a duty to give to the jury, by evidence, as complete a picture as possible of all the surroundings; and this irrespective entirely of any question of subsequently connecting the defendant with the transaction by other proofs. Such evidence is a necessary preliminary to any which shall be offered to connect any particular person with the homicide, and the more full and complete the prosecution make it, the better do they discharge their duty to the public, and, if he is innocent, to the defendant also.

We have no doubt the evidence given in this case was admissible as a part of this preliminary showing. From the record, however it does not appear to have been offered with this view, but as a part of a...