Ex parte Earle, 221.

• Citation: 316 Mich. 295,25 N.W.2d 202
• Decision Date: 02 December 1946
• Docket Number: No. 221.,221.
• Parties: Ex parte EARLE.
• Court: Supreme Court of Michigan

316 Mich. 295

25 N.W.2d 202

Ex parte EARLE.

No. 221.

Supreme Court of Michigan.

Dec. 2, 1946.

Proceeding in the matter of the petition of Carl Richard Earle for writ of habeas corpus, together with ancillary writ of certiorari.

Petition denied.

Before the Entire Bench, except DETHMERS, J.

Foss O. Eldred, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Daniel J. O'Hara Asst. Atty. Gen. (Donald W. Gilbert, Pros. Atty., and Kenneth W. Cole, First Asst. Pros. Atty., both of Saginaw, of counsel), for the People.

David E. McLaughlin, of Saginaw, for petitioner.

BUSHNELL, Justice.

Petitioner Carl Richard Earle seeks a writ of habeas corpus for the purpose of determining the legality of his detention while awaiting a new trial on the charge of murder.

During the May, 1945, term of the circuit court for the county fo Saginaw, an information was filed against Louis Earle charging him with the murder of Margaret Estella Wittebols. At the September term of court in the same year a separate information was filed charging petitioner Carl Richard Earle with the murder of the same person. In November the people filed a motion seeking an order requiring Louis Earle and Carl Earle to be tried jointly. This was opposed by Louis and the court directed that they be tried separately.

The trial of Louis was begun on December 6, 1945. On January 24, 1946, when the jury was unable to agree upon a verdict, it was discharged and Louis still awaits another trial. During his first trial, when Louis testified in his own behalf, he implicated his uncle Carl Earle.

The trial of petitioner Carl Earle was begun on March 26th, but a jury was not secured until April 9th. On April 16th, Louis Earle was called as a witness for the people and, after stating his name and residence, he refused to answer any further questions, generally responding with the statement, ‘I do not care to talk in this case.’ Louis was interrogated as to this refusal in open court before the jury in Carl's case. Counsel for defense suggested that this discussion should be in the absence of the jury, but the trial judge proceeded to inquire why Louis refused to answer questions. After considerable colloquy the jury was excused but not until after the court had made the following statement in its presence:

‘Well, I will tell you what we will do, you may go back to the place you came in from this morning and you can stay there until you make up your mind to talk. This court wants the record to show that the witnessin this case is also accused of the same offense as the defendant in the case is accused of; that he was tried in a previous term of court and that in that trial he was called as a witness in his own behalf and testified in his own behalf and that he has been properly brought into court this morning and has been asked a proper question; he has refused to answer that question of the prosecuting attorney, or made by the prosecuting attorney, and that in response to an order by the court he has refused to give any testimony, and with that why I think we will excuse the witness from the witness stand, but you will remain in court.’

Petitioner's counsel objected to any adjournment and urged that Carl Earle was entitled to a speedy disposition of the cause without undue delay. Further discussion ensued with respect to the testimony which Louis gave at his own trial. He was thereafter recalled to the stand, questioned further, and then informed that he was guilty of contempt of court in refusing to testify. Louis was remanded to the custody of the sheriff to give him an opportunity to confer with his own attorney, and the Carl Richard Earle case was adjourned until April 30th. In response to counsel's charge that the matter had already been adjourned longer than was necessary the court said:

‘We are now in the eighth day of this trial, that the trial for the rest of the week will go for the 16th, 17th and 18th of the month of April, and possibly the morning of the 19th, which is the morning of Good Friday, that if it was not concluded at that time it would have to be adjourned during the week of April 21st because of the fact that the Judge of the court is required to hear matters in another circuit of this State, namely, the Circuit of Wayne County, and that this appointment to Wayne county has to do with the hearing of criminal cases there-motions and criminal cases there for which the defendants therein have been waiting disposition since the second week of January of this year; that when this case was commenced on the 26th day of March it was deemed in the opinion of this court and the presiding Judge of the court would be ample time to dispose of the case, however, we did not look for the interruption which has occurred this morning. I think the witness is entitled to time in which to confer with counsel. It is the understanding of the court that his attorney is now in the hospital, and by his attorney I refer to Mr. Robert J. Curry of this Bar. While he might be able to confer with his attorney sometime before this week is over, we cannot continue the trial of this case during the week of April 21st because of the assignment of the Judge for Wayne County, and the only thing we could do this morning is to set the continuance of this trial until Tuesday, April 30, 1946.’

On April 30th the case was adjourned to May 14th by consent because of the illness of the defendant's counsel. On May 14th the cause was again continued for the same reason until June 11th. On June 11th the cause was again continued on defendant's motion until June 25th.

On June 25th the court made the following statement on the record:

‘Let the record show that Number 9 in the jury box Illa Bartlett is absent and her absence is due to the fact that since we were here before one of the members of her family has been taken ill and it was necessary for her to take him to some specialist in another city here in the United States or Canada and she had to accompany him for that reason when she notified Judge Holland, the presiding judge, and we conferred, under the circumstances she was excused from the jury.

‘Now then, in view of the fact that we have already spent 7 1/2 days in the hearing of this trial and because of certain events which have transpired at the hearing when we were here last together and because this matter has been adjourned through no fault of anyone's excepting that the attorney for the defendant was very seriously ill, it...