People v. Annis

• Decision Date: 24 October 1865
• Citation: 13 Mich. 511
• Court: Michigan Supreme Court
• Parties: The People v. Annis and another

13 Mich. 511

The People v. Annis and another

Supreme Court of Michigan

October 24, 1865

October 20, 1865; October 21, 1865, Heard [Syllabus Material]

On exceptions from Calhoun circuit.

The facts are stated in the opinion.

Verdict set aside and a new trial granted.

D Darwin Hughes, for plaintiffs in error:

1. There was no such preliminary examination in this case as would warrant the filing of an information: Laws 1859, Act 138, Sec. 6, p. 359.

An examination of three jointly, and a holding of the three for trial, lays no foundation for an information against two. The record of the magistrate and the circuit must be identical as to parties.

2. The witness, Doty, was incompetent as being a party to the record.

Doty, being a party defendant to the preliminary examination, was not a competent witness to verify the information.

The information must be verified before filing, and at the time of its verification there was no foundation laid except the joint examination of the three. Doty was not a competent witness on the examination, and if not, he could not verify the information. If, after he was jointly held for trial, he became competent to swear in the case for any purpose, when was it?

3. The defendants were entitled to the assistance of their counsel while making their statements, both by suggesting to them material subjects and by interrogation: Const. Mich., Art. 6, § 28; Laws 1861, Act 125, § 2; People v. Thomas, 9 Mich. 314; Maher v. The People, 10 Mich. 327; The People v. Thomas, 9 Mich. 314.

4. When an impeaching witness has sworn that the character of a witness is bad, and on cross-examination has stated the names of persons whom he has heard speak against it, he cannot be asked what those persons said. It is hearsay and is irrelevant. The inquiry must be general as to his reputation, not what particular individuals have said: Bates v. Barber, 4 Cush. 109; Lower v. Winters, 7 Cow. 264; State v. Howard, 9 N. H.; People v. Mather, 4 Wend. 259; 1 Greenl. Ev., § 461; Gordon v. The State, 3 Clarke Iowa, 414.

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

1. The objection that Doty was not a competent witness, for the reason that he was jointly charged with the defendants in the complaint before the magistrate, is not well taken.

An accomplice, whether principal or accessory, not being upon trial with his companions in crime, is certainly a competent witness; and this though his hopes of pardon depend upon their conviction: 1 Greenleaf's Ev., § 379; 2 East. 782; The People v. Jenness, 5 Mich. 307.

2. The objection that the court acquired no jurisdiction of the respondents through the filing of the information, for the reason it was verified by Doty, who was jointly charged with them in the complaint on which they were held by the examining magistrate, cannot be sustained either upon principle or authority: Washburn v. The People, 10 Mich. 372-3-4-5, 384-5-6; Hicks v. The People, 10 Mich. 395; Evans v. The People, 12 Mich. 27, 37-8; "Irregularities," Bouv. L. Dic., and cases cited; 12 Mich. 371-6; 3 Mich. 78, 83-4.

3. The fact that several persons were jointly charged with a crime in a complaint before a magistrate, under the act of 1859, cannot operate to prevent the prosecuting officer from informing against them separately in the circuit court. The administration of justice may sometimes be better promoted by such course: Smith's Commentaries, Secs. 490-1-2-3; 1 Kent's Com., 468; 3 Cowen R., 89, 96; 4 Comstock R., 140-4-5.

4. It is averred, as error, that James Case, one of the respondents' witnesses, introduced to impeach George Doty, after testifying upon his cross-examination, "that he had heard Gilbert G. Collins speak against said George Doty before the commencement of this suit," was allowed to answer the question, "What did Gilbert G. Collins say?"

This question was proper and relevant by way of testing the credibility or means of knowledge of the witness Case, or with a view to his own impeachment: The People v. Dalton. 15 Wend. 581-5-6-7; Green's Practice, § 1216, and authorities cited; 1 Greenleaf's Ev., § 461, and authorities cited; 1 Mich. 107-8.

OPINION

Cooley, J.

The defendants and one George Doty were arrested upon a warrant issued by a justice of the peace, charging them with the larceny of a mare. A preliminary examination having been had, the justice found probable cause for believing them guilty of the offense, and these defendants were duly recognized to answer the charge in the circuit court, while Doty was committed to jail in default of bail.

The prosecuting attorney, instead of proceeding against the three jointly in the circuit court, filed one information against Doty, and another against these defendants; the later being verified by the oath of Doty. The defendants, being arraigned on this information, pleaded not guilty thereto, and the case was continued to the next term of the court.

When the cause came on for trial against these defendants, Doty was called as a witness for the people; and on its being admitted that he was the same person who was joined with them in the proceedings before the justice, the counsel for the defendants objected to his being sworn and examined as a witness, on the ground that he was not a competent witness in the case. The circuit judge overruled the objection, and the witness was sworn and gave evidence.

The reason urged for this objection is, that Doty was a party to the record, and, therefore, could not be made a witness against the other parties. We do not think this position is correct, and it does not, therefore, become necessary to decide whether his being a party would of necessity preclude his being a witness against joint defendants, when he was not himself on trial. It is true he was a party to the proceedings before the justice, but those proceedings are only preliminary to the filing of an information, and do not constitute a part of the record in the circuit court. The statute (Laws of 1859, p. 393) provides that, except in certain specified cases, no information shall be filed against any person for any offense, until such person shall have had a preliminary examination therefor, before an examining officer or magistrate, unless such person shall waive his right to such examination. The examination, under this statute, was designed, to some extent, to accomplish the purpose of a presentment by the grand jury under the law as it existed before, in protecting a party against being subject to the indignity of a public trial for an offense before probable cause had been established against him by evidence under oath. But it was never designed that the complaint or warrant before the magistrate should stand in the place of a formal presentment, nor that in the circuit court, the prosecuting officer should be limited by it in the mode of charging the offense. It is undoubtedly competent for him, so long as he does not undertake to proceed against a person for a different transaction than that to which the examination relates, to put his information in such form as, in his opinion, will enable him to try the offense on the merits, in the way most effectually to advance the ends of justice. In the present case he deemed it important that the defendants, who had been jointly examined for an offense which was several as well as joint, should be separately proceeded against in the circuit court; and we have no doubt of his right to do so. As the information was the commencement of the record in the circuit court, Doty stood in no other relation to the present defendants than that of an accomplice, and there was no legal objection to his evidence.

After Doty had been examined, the defense called one Case, for the purpose of impeaching him, who testified that he was acquainted with said Doty, and had known him for several years, and for that length of time had lived within two miles of him; that he had the means of knowing the general reputation of said Doty for truth and veracity in the neighborhood in which they both resided, and did know such reputation, and that it was bad. On being cross-examined, he further stated he had heard Gilbert G. Collins speak against said Doty, before the commencement of this suit. The prosecuting attorney then asked the witness the question: "What did Gilbert G. Collins say?" which was objected to by the counsel for the defendant, on the ground that it was not proper cross-examination, and that the question called for inadmissible hearsay testimony. The court overruled the objection, and the witness answered the question.

We have no doubt that this ruling of the circuit judge was correct. It was in accordance with the practice which has prevailed in this state from the earliest days, and in entire accord, as we believe, with the general rules of evidence. Mr. Greenleaf lays down the rule that where the impeaching witness has spoken to general reputation, the...