Grimm v. People

• Citation: 14 Mich. 300
• Court: Michigan Supreme Court
• Decision Date: 05 May 1866
• Parties: Daniel G. Grimm v. The People

14 Mich. 300

Daniel G. Grimm v. The People

Supreme Court of Michigan

May 5, 1866

Heard May 1, 1866; May 2, 1866 [Syllabus Material] [Syllabus Material]

An information was filed in the court below, jointly charging Daniel G. Grimm (the plaintiff in error), John Clark, Jack Brady, George McManus, and James Johnson, with the offense of burglary; that said Daniel G. Grimm elected to be tried separately, and a separate trial was awarded him; that on the 19th day of January last this case for the trial of the said Grimm came on to be tried by a jury; that evidence was introduced on the part of the people, tending to show the guilt of said Grimm; that said Grimm called and offered said John Clark, a co-defendant, as a witness on his part and behalf; that the court refused to allow the said Clark to be so used as a witness; that to said refusal exception was duly taken by said Grimm; that said Grimm then offered said Clark for the purpose of having him, Clark, make a statement on the part of him, Grimm, and with like result, and that the trial resulted in the conviction of said Grimm.

Judgment affirmed.

Larned & Hebden, H. M. Cheever and O. F. Wisner, for plaintiffs in error:

1. At common law a co-defendant, jointly indicted, could not be examined as a witness for the defense until either acquitted or convicted; but we submit that by the statute of 1861, this disability is removed. The language of the act is, "no person shall be excluded from giving evidence in any matter civil or criminal, by reason of crime, or for any interest of such person in the matter, suit or proceeding, in which such testimony shall be offered, etc.:" Sess. L., 1861, p. 168; 2 Comp. L., §§ 4339-4340; 11 Mich. 327; 13 Id. 511.

Under statutes and codes somewhat similar to ours, it has been held that the common law disability was removed, and that a co-defendant was competent as a witness for the defense when tried separately: 10 Grat. 708; 15 Ind. 249; 1 Geo. 610; 10 Iowa 81; 5 Cal. 183.

The policy of our statute is to abolish all objection to the admissibility of witnesses, and to refer the question of their credibility to the jury. The only limitation to this in criminal cases, as recognized in People v. Thomas, 9 Mich., seems to be a limitation based upon the inability of the legislature to make a defendant a witness in his own behalf, on account of the constitutional prohibition against such a privilege. With this exception, the intention of the legislature in the act of 1861 seems to have been to abolish all disability.

2. But this limitation does not apply to the question of the right of a respondent to make a "statement." The act expressly gives this right to him in his own behalf. There certainly can be no reason or justice in compelling him to remain silent when a co-defendant asks for such a "statement."

3. It does not appear from the record that the defendant on trial was present from the 17th to the 20th day of January, or when the verdict was rendered, although the trial was proceeding during the whole time. In cases of felony, we submit, a defendant must be present. There can be no doubt on this point, and we cite no authorities. The prisoner must be present when the verdict is received, that he may have the jury polled if he chooses to do so: 11 Ohio 472.

A. Williams, attorney-general, for the people:

1. According to the common law practice, a co-defendant in a criminal case cannot be a witness for and on behalf of one jointly indicted with him; and this, though the defendant offered as a witness be not on trial with him at the time: Roscoe's Crim. Ev., 153-4-5; 1 Greenl. Ev., §§ 358, 363, 379; 1 Denis C. C., 84; 10 Pick. 57; 10 Johns. 95; 5 Esp. 154.

2. Act No. 125 of the laws of 1861 of this state, in no wise changes the foregoing rules of evidence. At most, it provides for the testifying of parties in civil suits; and for the party or parties accused in criminal cases, "to make a statement to the court or jury," when on trial, in his or their own behalf: 2 Comp. L., §§ 4339-4342; Act No. 125, p. 168, Laws of 1861; 9 Mich. 314.

3. Public policy could tolerate no other construction than the foregoing. To hold otherwise would be to incite and reward perjury, and facilitate the escape of the guilty from the just penalties of the law. And courts will not construe a statute against the plain and obvious dictates of reason (7 Johns. 502); or so as to suffer it to be eluded (15 Id. 381); or defeat its purposes (9 Wheat. 81).

M. E. Crofoot, also for the people:

1. A co-defendant in a criminal case, named as such in the record, and an accomplice in the crime, before disposition of the case as to him, is an incompetent witness for the defendant on trial.

If competent at all, it must be by force of the statute of 1861: Sess. L., p. 168-169; 10 Johns. 95; 19 Wen. 377; 19 Miss. 674; 17 Ark. 327; 10 Pick. 57; 2 Va. 314; 15 Miss. 28; Yerger (Tenn.), 431; 1 Minn. 207; 4 Id. 438-449; 7 Iowa (Clarke), 347-349-383; 1 Doug. (Mich.), 48.

The admissibility of Clark's testimony can only be claimed under the second section of the act of 1861.

This section has received a construction from this court, and in permitting parties to be sworn, has been held to apply to civil cases only: 9 Mich. 314-315.

The reasons given for the rule which excludes the testimony of accomplices for their co-defendant, is the same as that given for the rule excluding other parties to the record, viz.: 1st. Interest in the event. 2d. Public policy: 1 Phil. Ev., 36; 1 Wend. 110-124; 1 Green. Ev., § 354; 1 Phil. Ev., 105-106-107, and notes.

Another consideration should be suggested, which is of great weight, and that is the practice under the statute.

Our act took effect 11th March, 1861, and ever since then the practice at the circuits has been uniform in holding such co-defendant an incompetent witness. More than five years of practice have upheld the old rule under this act; and it would be impolitic to overturn it, unless it clearly appears that the legislature intended to change the rule.

2. The second error assigned is, "that the court erred in refusing to allow John Clark to make a statement for and on behalf of said Daniel G. Grimm."

The bill of exceptions shows that the prisoner (Grimm) on trial requested that John Clark make a statement to the jury for and on his behalf; there was no offer or claim that he should be permitted to make a statement on his own behalf.

The statement referred to in the section clearly refers to the statement of the prisoner on trial. The object of it is to give the prisoner on trial the privilege of making a statement in his own behalf in relation to the charge against him: 9 Mich. 314-316-317; 13 Id. 355-511.

3. There is no allegation or pretense that the prisoner was not present during all that time, only that it does not appear of record. The respondents, Grimm and Clark, were arraigned at the bar in open court, and pleaded to the information.

OPINION

Christiancy J.:

The information was against Grimm, the plaintiff in error, John Clark, and three others, charging all jointly with the crime of burglary. Grimm and Clark were arraigned upon the information, and pleaded not guilty. Grimm was tried separately, and upon his trial called Clark, his co-defendant, who had not yet been tried (and who, therefore, remained subject to trial upon the same information), and offered to have him sworn as a witness in his behalf. This request was refused by the court, and exception taken; and upon this arises the main question in the cause.

In Pullen v. The People, 1 Doug. 48, it was held that a husband whose wife was jointly indicted with another person and neither acquitted nor convicted, was not a competent witness for the other defendant, though the latter alone was on trial. This decision was based upon the express ground that one of two defendants, jointly charged in the same indictment, cannot, before conviction or acquittal, be a witness for the other, though the latter be separately tried. This case settled the law in this state (if not previously settled), in accordance with the overwhelming weight of authority at common law, both in England and the United States. And this must still continue to govern us unless the law upon this point has in some way been changed by the act of 1861 (Sess. L., 168-169), amending certain sections of the Compiled Laws in relation to evidence. But it is insisted by the counsel for the plaintiff in error that this act has the effect to render a defendant, not put upon trial, a competent witness for his co-defendant, when separately tried; and he refers to the recent cases of Morissey et al. v. The People, 11 Mich. 327; and Annis v. People, 31 Id. 511, as tending to sustain this view of the statute. The latter case has no reference to the statute, nor any bearing, that we can discover, upon the point now under discussion. Separate informations were filed against the defendants; they were not jointly charged, nor parties to the same record; and we held, in accordance with the uniform rule of the common law, that one, though not yet tried, might...