People v. Allen, 42

Decision Date06 March 1958
Docket NumberNo. 42,42
Citation88 N.W.2d 433,351 Mich. 535
PartiesThe PEOPLE of the State of Michigan, Plaintiff and Appellee, v. William H. ALLEN and Frank J. Smith, Defendants and Appellants.
CourtMichigan Supreme Court

Stuart J. Dunnings, Jr., Lansing, for appellants.

Thomas M. Kavanagh, Atty. Gen., for State of Michigan, Edmund E. Shepherd, Sol. Gen., Lansing, Jack W. Warren, Pros. Atty. for County of Ingham, Lansing, for appellee.

Before the Entire Bench.

VOELKER, Justice.

The defendants were charged jointly with attempted breaking and entering in the nighttime and they appeal from their conviction below, alleging numerous errors during their trial. The background of this case is as follows:

Defendants Allen and Smith were observed by a Lansing policeman, Holmes, walking south on a street in Lansing around 1:30 A.M. on January 2, 1954. The officer observed them stop in front of Nasiff's Bar on South Washington avenue; as he later testified at the trial, he shortly heard the sound of splintering wood; he fired some shots and called out to the defendants, who fled, but were apprehended several blocks away. Other officers joined Officer Holmes and to the officers Allen and Smith claimed that they had come from Ohio looking for work in Michigan; that they arrived in Lansing on December 31, 1953; that they did not find work; that they had started hitch-hiking for Detroit and become lost and had finally found themselves in front of the lighted bar in question; that they did not know the establishment was closed; that they tried the door and found it locked, whereupon they heard someone shout 'hey you,' whereupon they heard two pistol shots which, as Allen later testified at the trial, so frightened them that they fled, not knowing who was shooting or way.

The defendants were also asked by the police what they did with the crow bar and Smith replied that he threw it behind a house. The next morning Lansing police officers found a wrecking or crow bar hanging from some shrubs in a yard in the vicinity where the defendants were apprehended, whereupon both defendants denied to the police that they had any crow bar or that they had ever seen the bar which was found. Defendants complain that there was no showing that the occupants of the house where the bar was found were ever asked by the police if they owned the bar. Defendants' fingerprints were not found on the bar. At the trial the officers testified substantially to the foregoing. Officer Holmes did not claim to have seen any bar in their hands or elsewhere as they stood in front of Nasiff's Bar, but he said he assumed they had one in order to splinter the door.

It further appears that sometime between the hours of approximately 10:00 P.M. on January 1, 1954 and 6:00 A.M. the next day (the hours it was closed) a supermarket some six miles from Nasiff's Bar was broken into and about $1,500 taken from a jimmied safe. At the trial of this case the prosecution offered evidence of that offense for the general purpose of showing intent and motive and common plan in connection with the charge for which defendants were being bried. Part of the evidence offered bearing on the prior offense was substantially as follows: 11 photographs of the supermarket showing the establishment disarranged and the safe broken into; a photograph of the heel print of a shoe found near the safe in the supermarket; a pair of gloves and the shoes worn by Smith when he was apprehended; the gloves worn by Allen at the same time; portions of the locking mechanism of the safe; and the door and door panelling, whether from the bar or the supermarket not clearly appearing from the record. All this evidence and these exhibits were objected to by the defense but were admitted and received in evidence.

Merle Woodward of the Michigan crime detection laboratory also testified for the prosecution over objection that he made certain 'scratch' tests on a lead bar with the wrecking or crow bar recovered by the Lansing police; that these were then photographed and compared with photographs taken of scratch marks on the supermarket safe and that there were 21 points of similarity and that in his opinion they were made by the same instrument. On cross-examination he admitted that he also found dissimilar scratch marks. The defendants complain that no proof was offered that dissimilar bars might not have left similar marks.

A detective from Ohio testified that on January 6, 1954, he searched a car owned by the deendant Allen in Hamilton, Ohio and found, among other things a plaid cap. (Both defendants were then in custody in Michigan.) Found on this cap were particles of metal. This cap was admitted in evidence over objection. In this connection Merle Woodward further testified that the wrecking bar recovered by the Lansing police had paint on it similar in color and type to that on the safe at the supermarket. He made his examination under a microscope. He testified that he made no chemical analysis. Proof was also offered and received over objection that a microscopic examination showed that the metal particles on the cap found in Ohio appeared to be made of a brass similar to that found on the safe. Defendants complain, and offered some proof below, that neither the similarity in paint nor metal could exactly be determined except by chemical analysis.

Merle Woodward also testified that he examined under a microscope a photograph of the heel print found at the supermarket 'job' and compared it with the heel of Smith's shoe and found three areas of similarity. Defendants complain of this that it failed to show a resemblance to the center of Smith's shoe; that the prosecution had likewise failed to show that the prints were the same size; and further that there were still other heel prints found at the supermarket scene which were different from the heels of the shoes of either defendant. The defense also brought out testimony tending to show that the supermarket safe could not have been damaged to the extent it was with the wrecking bar alone. No other devices or tools were recovered by the police from Allen's car in Ohio. Defendants also complain that the People failed to show that Allen's car had ever been in Michigan.

At the conclusion of the People's proofs the defense made a motion for a mistrial on the grounds of the improper offer and reception of evidence, especially as bearing on another or prior offense. This motion was denied, renewed again at the close of all proofs, and again denied. Defendants urge here that these and other errors below were fatal and must result in a reversal. Among other claimed errors was the following argument made to the jury by the prosecution and to which defendants objected:

'I think I am going to get down to calling a spade a spade. I am going to do so with Mr. Dunnings. During this argument he has gone on the assumption everybody in this case is a fraud, a falisifier, and a fabricator, and his man over here is telling the truth. Everybody else is a liar except his man. I don't like that. That is dishonesty of the highest order and it is improper. He knows it isn't true, and these police officers, the fact that every ones does not testify exactly alike is the best proof in the world they are telling the truth, that they didn't put any stories together to try to convict anybody.

'I want to point out a few things. I want to point out this much, that when Mr. Dunnings leaves or tries to leave the impression in the mind of the jury that he couldn't get a chemical analysis and bring them in here off our samples, that is a hundred per cent fabrication.'

'Mr. Dunnings: I object to that. There has been no such impression attempted. We had no such burden of proof in any event. That is improper argument. I never once stated I couldn't; I admitted I could if I wanted to but we had to prove nothing. That is improper.

'The Court: All right.

'Mr. Younger: No, he doesn't have to prove anything, but the point of it is he can prove it if he wants to. Now he is not fooling me one little bit. He couldn't prove it and I know he couldn't prove it, because if he could he would have done it. * * *

'Dunnings knows in his own mind and heart if he would compare them (paint on bar and paint on the safe) they would be the same as on that safe. That is the answer. He knows what they would show if they ever compared them. And don't you think for a minute if those two fellows were innocent, and you don't need to be a lawyer to figure this out, let us show the two steps he lays up here for the defense of his clients. First that the chemical analysis can be made. He is the man who is the confidante of these two men over here, and he would know from his talk whether they were guilty or not, and if they weren't----

'Mr. Dunnings: (Interposing) I object to that as being improper as to what I know whether these fellows are guilty or not from the way I talked to them. Definitely improper, and it would lead the jury to believe the prosecutor has something I don't know about, that has not been testified to. I am not on the stand. I haven't testified.

'The Court: I would omit that, Mr. Younger.

'Mr. Younger: There isn't any police officer or any prosecutor or any human being that ever walked on the face of the earth that would suit Mr. Allen, and when I get to the position where I do my work, and I will admit my work is not perfect by a long ways, and for the officers, I will admit their work is not perfect, but when I get to the point where people like Mr. Dunnings, where I have to please him, I don't want to have anything to do with prosecuting criminals in Ingham County.

'Mr. Dunnings: That is improper argument, what is he trying to do to please me.

'The Court: Omit that too, Mr. Younger.'

Following this contretemps the prosecution in its further argument also alluded to certain charges made by the defense in its argument that the Lansing police were lying over whether they...

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