Driscoll v. People

• Decision Date: 11 January 1882
• Citation: 47 Mich. 413,11 N.W. 221
• Court: Michigan Supreme Court
• Parties: DRISCOLL v. PEOPLE.

11 N.W. 221

47 Mich. 413

DRISCOLL v. PEOPLE.

Supreme Court of Michigan

January 11, 1882

A complaint of robbery made to a policeman immediately after its alleged occurrence is admissible on the prosecution as part of the res gestae. So also are the statements made at the same time by the accused.

The credit of a witness cannot be impeached or assailed by the direct testimony of other witnesses to any charge of criminality formerly made against him, unless he has been adjudged guilty; and this must be shown by a record of the judgment.

A witness may be cross-examined, within the proper discretion of the court, not only as to whether he has ever been convicted of crime, but as to any serious charge brought against him.

A witness cannot be contradicted on collateral questions not admissible as direct evidence.

The complaining witness in a prosecution for robbery was cross-examined as to having once been arrested for robbery himself, but he was also permitted to explain the affair as not inculpating him. The respondent then introduced the testimony of the officer who had arrested the complaining witness. Held improper; but as the officer's testimony was admitted, it was proper to allow him to be cross-examined as to that arrest and to give exculpatory testimony.

A witness is entitled to the benefit of any explanation affecting the inferences that might be drawn from his having once been arrested on a criminal charge.

Arrest for crime is no evidence of its commission; and a witness cannot be impeached by the direct testimony of other witnesses that he has himself been arrested; and if the question is raised, it is collateral, and he may explain the fact and his explanation cannot be contradicted.

It is allowable for a trial judge to ask a witness whether a conversation testified to as having taken place in his presence could have gone on without his hearing it. The question is somewhat leading, but not more so than is sometimes allowed in impeaching questions, to save time; and if directed merely to the substance of the alleged conversation is less objectionable for its leading character than if it set out the precise language sworn to.

It is not error, though it may be bad taste, for the prosecuting attorney, in commenting on the testimony of a witness, to say to the jury that he had lied.

A charge must be taken together; error will not lie upon detached sentences which, when construed with the rest, are not objectionable.

Where a person on trial for robbery admits the forcible taking, but explains it as an attempt to get back property taken from himself, the question of his good faith depends entirely on whether he simply meant to get back what he believed to be his own. His being intoxicated is a fact which it is proper for the jury to consider.

The omission of specific instructions for the respondent in a criminal case is not error if they were not asked for and the charge actually given was not misleading.

Error to Saginaw.

It is only as to matters relevant to the issue that a witness can be contradicted for the purpose of impeachment.

John McArthur and William H. Sweet, for respondent.

Jacob J. Van Riper, Atty. Gen., for the people.

CAMPBELL, J.

Driscoll was convicted of robbery, the person charged to have been robbed being one William Algram, and the crime alleged to have been committed, being described as committed in East Saginaw. When sworn, Algram, who lived at East Saginaw, and is a laborer, testified to an acquaintance with Driscoll, who had formerly been a saloon-keeper in East Saginaw, but for some two years had lived at Farwell. His story was that on the night of the assault Driscoll was visiting East Saginaw and in company with Algram visited several saloons, drinking a number of times. Finally, as they were in the street Driscoll, as he testified, seized him and demanded his money threatening to run a knife through him unless he gave it up. Witness says he took out two bills, amounting to three dollars, which Driscoll snatched from him, and demanded the rest of his money, and tore open his pocket, getting in all seven dollars. Witness ran and called for the police, and having met an officer near the corner of the block, he complained of the robbery and they returned and Driscoll was arrested. There was testimony to the effect that when they came up to Driscoll he was examining some bills by the street lamp, and that he told the officer Algram had taken seven dollars in silver from him, and he had just taken it back and would have cut Algram's heart out if he had not given it back; that on the way to the station-house Driscoll told Algram "If you squeal on me I will fix you;" and at the station charged Algram with having taken the change of a five-dollar bill which Driscoll had got changed at one of the places they visited. There was further testimony about the possession of money, and of a subsequent threat by Driscoll to kill Algram if he squealed on him.

Driscoll in his statement, averred that instead of robbing Algram, the latter had come up behind and overtaken him, and had put his hand in Driscoll's pocket and taken the bills in question, when Driscoll seized his hand and took them away. He also claimed to have had still more money, a part of which he had supposed he had dropped, and that he had visited some of the saloons with the idea that he might have lost it in one of them. He also put in corroborating testimony concerning his possession of money, and on other points which became material.

The first error assigned was the admission of the complaint made to the policeman and the refusal to strike it out. We held in Lambert v. People, 29 Mich. 71, in a similar case to this, that such statements made immediately after the alleged robbery were admissible as part of the res gestae. The whole was practically one continued and brief transaction, and all that took place, was of some consequence in construing the conduct of both parties. Some of the statements of the two, bore one way, and some another, and evidence of Driscoll's story was admitted as well as Algram's. Both were correctly admitted.

Several errors are also alleged, arising out of inquiries concerning an arrest formerly made of Algram on a criminal charge. Having answered on cross-examination that he had been charged jointly with a cousin, before a justice of the peace, with robbing a trunk in his uncle's house, he explained under objection the statements made by the complaining witness as to his innocence, and also explained the transaction, as not inculpating him in any way, and that he was not proceeded against as the thief. Driscoll introduced as a witness one of the police who testified to the arrest of Algram, and his subsequently being as he supposed in his constructive custody, although allowed to be at large. On cross-examination the officer was allowed, under objection, to explain the purposes and circumstances of the arrest and release, and among other things to mention the complaining witness' statement that she knew he was innocent, and did not desire or propose to prosecute him. This exculpatory testimony was objected to. There is no rule which will allow the credit of a witness to be impeached or assailed by the direct testimony of other witnesses to any criminality or charge of criminality, unless he has actually been adjudged guilty. And this can only be shown by a record of a judgment. Smith v. Brown, 2 Mich. 162; Dickinson v. Dustin, 21 Mich. 561.

A witness may be asked on cross-examination within the proper discretion of the court, not only concerning his conviction, but also concerning any serious charge brought against him. Wilbur v. Flood, 16 Mich. 40; Clemens v. Conrad, 19 Mich. 170; Hamilton v. People, 29 Mich. 173.

Very great latitude is sometimes necessary in cross-examination and we have...