Gale v. People

• Decision Date: 07 November 1872
• Citation: 26 Mich. 157
• Court: Michigan Supreme Court
• Parties: Frank Gale v. The People

26 Mich. 157

Frank Gale v. The People

Supreme Court of Michigan

November 7, 1872

Heard October 29, 1872

Error to Kalamazoo circuit.

Conviction set aside, and a new trial ordered.

O. T Tuthill, for plaintiff in error.

Dwight May, Attorney General, for the people.

OPINION

Cooley J.:

The plaintiff in error stands convicted of an assault with intent to kill and murder one McDonald. The attempt is charged to have been made with a revolver loaded with powder and ball. The evidence showed the revolver to have been discharged, but McDonald was not injured, and there was no direct evidence that the revolver was loaded with ball. The circuit judge was requested to instruct the jury that, "the jury must find from the evidence all the material allegations in the information, such as the intent to kill, and the means used sufficient to accomplish it, and that the pistol contained a leaden bullet as charged; these are material averments, and must be proved in order to warrant a conviction." This request was refused, and error is assigned upon the refusal.

The point made is, that, for all that appears, the revolver may not have been loaded at all, and, consequently, whatever may have been the supposition of the prisoner in that regard, and whatever his intent, the crime charged is not shown to have been committed, in as much as the power to kill would then be wanting. And the cases of Henry v. The State, 18 Ohio 32, and State v. Swails, 8 Ind. 524, are cited in support of this position.

The point is one which we do not think is necessary to discuss on this record. All the evidence in the case bearing upon it, tended to prove that the pistol was loaded as charged, and an instruction to the jury which treated that fact as disputed, could only, if it influenced their deliberations at all, have sent them off into the regions of conjecture, without practical benefit. No one but the prisoner himself knew how the weapon was loaded. He made a detailed statement of the affair, in which, though he does no expressly say the instrument contained a bullet, he all the while assumes that it did, and, immediately after the firing, he went off and complained of himself on the evident supposition that he had inflicted dangerous, if not fatal, injury. We therefore think the case did not call for the particular instruction requested. The crime was correctly described in the charge, and its elements indicated so far as the case made necessary.

A more serious question arises upon the cross-examination of the defendant. His statement covered the whole case, and he was cross-examined upon it, without objection. The prosecution then, after inquiring about the former place of residence of respondent, produced several letters in view of the jury, and from what they purported to contain, interrogated the respondent, whether he had lived or been in a number of places named, and whether at one he had not been arrested on a charge of murder, and at others also been arrested, and at others still, been put in jail. All of these questions were objected to, but sustained by the court, and were answered. The court, however, informed the prisoner, after the first had been put and answered, that it...