Foster v. People

• Citation: 18 Mich. 266
• Court: Supreme Court of Michigan
• Decision Date: 27 April 1869
• Parties: Foster v. People

18 Mich. 266

Foster v. People

Supreme Court of Michigan

April 27, 1869

Heard April 9, 1869 [Syllabus Material] [Syllabus Material]

Error to Macomb circuit.

The defendant, in the court below, was tried and convicted upon an information charging him with larceny of a horse.

The errors assigned, and the facts bearing upon them, are stated in the opinion.

Newberry Pond & Brown, for plaintiffs in error:

1. Defendant, in court below, was tried in Macomb circuit, for larceny of a horse. The prosecuting attorney, having elected to try Foster separately, put the other prisoner, McCoy, upon the stand, and elicited from him a statement which tended to show the guilt of Foster, and proved conclusively his own guilt.

We were, therefore, entitled to the widest latitude in impeaching his credibility. He was asked whether he had made an affidavit of a defense upon the merits, and the question was then asked, "What was that defense? " McCoy did not object to this on the ground that it would criminate himself, nor could he do so after the confession he had made. He was bound to answer everything in relation to the transaction: Greenl. on Ev., § 451; Alderman v. People, 4 Mich. 414; State v. Condrey, 5 Jones Law, 418; State v. Foster, 3 Fost. 348.

The evidence he gave would not be admissible against him: People v. Whipple, 9 Cow. 716.

And upon doing this he is entitled to a noll. pros. of the information against him: 1 Bish. Crim. Pro., § 507; 1 Phillips on Ev., p. 107; United States v. Lee, 4 McLean 103.

The court erred in sustaining the refusal of the witness to answer. Although it is within the discretion of the court to limit the latitude of a cross-examination upon immaterial points, it is only where competent evidence is not excluded that no error lies: Rand v. Newton, 6 Allen 38; Morein v. Solomons, 7 Rich., S. C., 97; People v. Blakely, 4 Park. 167.

And where the evidence excluded is irrelevant to the issue: Grt. W. Turnpike Co. v. Loomis, 32 N. Y., 127; People v. Bodine, 1 Denio 281; People v. Abbott, 19 Wend. 192.

In all similar cases, where a new trial has been refused, the testimony sought to be introduced was immaterial, or related to some transaction entirely independent, and tending only to degrade the witness in the eyes of the jury. But the question in this case was entirely relevant: Kirschner v. State, 9 Wis. 140; Newton v. Harris, 2 Seldon 345; Nye v. Merriam, 35 Vt. 438; Bersch v. State, 13 Ind. 434.

The limits to which a cross-examination may properly extend, is no longer a question of doubt in this state: Campau v. Dewey, 9 Mich. 381; Chandler v. Allison, 10 Id. 460; Beaubien v. Cicotte, 12 Id. 459; Dann v. Cudney, 13 Id. 239.

2. The rejection of Collyer's proposed testimony, as to whether the defendant had sought to purchase a horse of him within six months, was also erroneous.

The statements of a prisoner are admissible in his own behalf, when they are part of the res gestoe, or when they constitute a verbal act in themselves: Roscoe on Crim. Ev., 23, 89; Dillin v. People, 8 Mich. 357; Russell v. Frisbie, 19 Ct. 205; Powell v. Bagg, 8 Gray 441; Boyden v. Moore, 11 Pick. 362; Marcy v. Stone, 8 Cush. 4; Simonds v. Clapp, 16 N. H., 222; 1 Greenl. Ev., § 108.

The only question here is, is it relevant? Does it tend to prove the prisoner's innocence? The theory of the prosecution was, that the prisoner conspired with others to steal the horse and sent it to Toledo for sale. Foster's defense was that he wanted a horse for his son; bought this one because he thought it cheap, and gave it to McCoy to exchange for a smaller one. Evidence that the defendant bought and sold horses as a business would certainly be admissible to show that he bought this one in the usual course of that business. It seems equally clear that evidence that he wished to purchase a horse would tend to show that he purchased this one in good faith.

We submit that a new trial should be granted.

Dwight May, Attorney-General, for defendant in error:

There are but two grounds of error alleged in the record.

1. That the court erred in refusing to direct the witness, McCoy, that it was his duty to answer the question, "What was that defense?"

a. McCoy was jointly charged in the information with Foster, who was on trial; McCoy was a witness for the prosecution. He had been examined by the people, and gave testimony tending to show that Foster was guilty of the crime charged. On the cross-examination he was asked if he had not made an affidavit in that cause for a continuance, in which he swore that he had a good defense, and was then asked, "What was that defense?" The prosecution objected, but was overruled by the court.

The witness then declined to answer, on the ground of the privilege, and was sustained by the court. While the court erred in its reason for the exclusion, the testimony was clearly collateral, and no error was committed which will authorize a new trial: Hilliard on New Trials, 211; Munro v. Potter, 34 Barb. 358.

It could make no manner of difference with the issue then being tried between the people and Foster, what defense the witness had to the same or a similar charge. The witness was not then on trial, and so far as this question is concerned, it stands precisely as if Foster and the witness had been separately informed against: 1 Wharton Crim. Law, 435; Waltzer v. State, 3 Wis. 785; Stranghan v. State, 16 Ark. 37; Cord v. Com., 14 B. Monroe, 386.

It is well settled that a witness cannot be cross-examined as to any distinct collateral fact for the purpose of laying the ground for impeachment: 1 Greenl. Ev., §§ 52, 448, 449; Harris v. Wilson, 7 Wend. 61; Plato v. Reynolds, 27 N. Y., 587; Carpenter v. Ward, 30 Id. 243; People v. Mc Ginnis, 1 Parker Crim. R., 391; Dunn v. Dunn, 11 Mich. 283; Fisher v. Hood, 14 Id. 189; Com. v. Buzzell, 16 Pick. 157; Ware v. Ware, 8 Greenl. 29.

b. It does not appear that the exclusion of the testimony prejudiced the rights of Foster in the slightest degree.

Unless he shows some error prejudicial to him, a new trial will not be granted: Hilliard on New Trials, 32, and cases cited.

Nor will it be granted to correct a mere theoretical error: Munro v. Potter, 34 Barb. 361.

2. The only other error assigned is: That said court erred in refusing to permit the witness George W. Collyer to answer the question, "State whether defendant has sought to purchase a horse of you at any time during the past six months, and before the first of October last."

a. So far as anything appears in this record, this question was clearly immaterial and irrelevant to the issue.

b. The question called for the declarations of Foster, uttered six months before the alleged larceny. They were not a part of the res gestoe, and were therefore clearly inadmissible: Dawson v. Hall, 2 Mich. 390; Oliver v. The State, 17 Ala. 587; Carter v. Buchanan, 3 Kelley (Geo.), 513; Crosby v. Leary, 6 Bosw. 313.

OPINION

Campbell J.:

The respondent was informed against jointly with one William McCoy, in the circuit court for the county of Macomb, for the larceny of a horse, and some other articles. Foster was tried separately, and the other defendant, McCoy, was used by the people, as a witness against him.

McCoy proved facts tending to show the guilt of Foster, and showing also his own guilt, in receiving the horse in Detroit and taking him to Toledo, where the witness was arrested with the stolen property. Upon cross-examination, he admitted that he had made an affidavit for continuance, in which he swore that, as he had been advised by counsel, and believed, he had a good defense upon the merits. Counsel for Foster then asked what that defense was. The counsel for the people objected to the question, on the ground that a person accused of crime could not, while a trial was pending, be compelled to disclose his defense. The court overruled this objection, and then the witness declined to answer. The record does not show on what ground the witness declined. The court refused to direct him to answer.

Whether the witness had, or had not, such a privilege, it was not an objection which any one but the witness himself could raise upon the trial, and probably the court overruled it, when made by the prosecution, on that ground, inasmuch as when made by the witness, it was allowed. Privilege from crimination, or the like, is no ground for refusing to allow questions to be put if not objected to by the party privileged: 1 Greenl. Ev., § 451; Roscoe Cr. Ev., p. 174; note to Thomas v. Newton, 1 Moody and Malk., 48; Com. v. Shaw, 4 Cush. 594; Southard v. Rexford, 6 Cow. 254.

It cannot be reasonably claimed that the question was too irrelevant to be answered, even if such an objection could be taken by a witness. Any defense which he may have had against the charge could only have related to matters directly bearing upon what he had already testified to; because the charge was against both him and Foster, and anything throwing light upon any transaction connected with the history of the theft, from its inception to the arrest of the property in his hands, was receivable in evidence on the trial, and was properly received by the court. If excluded at all, it must be on some ground of privilege, which justified the witness in refusing to disclose the facts referred to.

Nor can it be regarded as unimportant, to enable the jury to appreciate the real character of the witness, as a reliable narrator. It has always been understood that the testimony of accomplices against a prisoner should be scanned with jealousy; and in many cases it has been intimated that no conviction could be properly had upon that alone. We do not hold to this extreme doctrine, but leave the credit of such persons to the jury;...