People v. Barmore, 84

• Decision Date: 01 October 1962
• Docket Number: No. 84,84
• Citation: 368 Mich. 26,117 N.W.2d 186
• Parties: The PEOPLE of the State of Michigan, Appellee, v. Herman BARMORE, Respondent and Appellant.
• Court: Michigan Supreme Court

Page 186

117 N.W.2d 186

368 Mich. 26

The PEOPLE of the State of Michigan, Appellee, v. Herman BARMORE, Respondent and Appellant.

No. 84.

Supreme Court of Michigan.

Oct. 1, 1962.

John P. Boeschenstein, Muskegon, for Herman Barmore, respondent and appellant.

Paul L. Adams, Atty. Gen. of Michigan, Joseph B. Bilitzke, Sol. Gen., Lansing, and Harry J. Knudsen, Pros. Atty. for County of Muskegon, Muskegon, for the People.

Before CARR, C. J., and DETHMERS, KELLY, BLACK, KAVANAGH, SOURIS and SMITH, JJ.

PER CURIAM.

Defendant was jury convicted of murder in the second degree. His motion for new trial was denied. Sentence of life imprisonment followed. Upon leave granted defendant reviews and presents 5 questions, 3 only of which require discussion and decision.

First: Error of intemperate comment upon his testimony, by the trial judhr, is urged and stressed by defendant. the connected instruction of which complaint is made appears in the appendix as follows:

'The undisputed evidence in this case is that the defendant gave this statement to the prosecuting attorney telling how he shot Peter Gorham; that thereafter he went to the scene and reenacted how he had shot him. You have seen the photographs and heard that testimony. That was shortly after the defendant had been returned here from Arizona in May. From that time on the statement he had given that he had shot this boy was allowed to stand by him. He gave no indication that he claimed he had not shot this boy until the very commencement of this trial in November, a period of about five months, although the defendant had been before the Municipal Judge twice in the city court and before me here in this court on at least 2 occasions.

'He now says that he gave that statement under compulsion because of improper inducement offered him by Sheriff Davis. Now, you have heard the testimony as to the deliberate and voluntary manner in which this statement was made. There is no evidence, and there is no claim by the defendant Barmore that any force was used or physical abuse, or anything of that kind. This claim of the defendant now made that the statement was induced by an improper action of the sheriff, in my opinion, should be given little or no weight by this jury. To put it bluntly, ladies and gentlemen, my comment to you is that I don't believe it and I don't think you should.'

By such instruction, and as in People v. Clark, 340 Mich. 411, 421, 65 N.W.2d 717, 721, 'The jury could scarcely have failed to understand that the trial judge believed that the testimony of defendant [Barmore] was false.' On that account, likewise as in the Clark Case, we must conclude that the trial judge's comment 'exceeded the limits of fair comment' and that the result was and now is reversible error. For elaboration, see People v. Padgett, 306 Mich. 545, 11 N.W.2d 235, and People v. Lintz, 244 Mich. 603, 222 N.W. 201.

Second: At 1:41 in the afternoon of the second day of deliberation the jury members were called into the courtroom. In the absence of defense counsel the judge announced that relief for lunch would be provided 'a little later.' He then instructed:

'However, before we do that there are one or two things I would like to say to you.

'The only manner, ladies and gentlemen, that is provided by the laws of our country for deciding questions of fact in criminal cases is by the verdict of a jury. In a large portion of cases, and, in fact, strictly speaking, in all cases, absolute certainty cannot be attained, nor is it expected. If that was the law there would be little use in trying any cases at all.

'Now, ladies and gentlemen, in conferring together you ought to pay proper respect to each other's opinions, and listen with a disposition to be convinced to each other's arguments. And, on the one hand, if a much larger number of your panel are for conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many jurors who are equally honest, equally intelligent with himself, and who have heard the same evidence with the same attention and with an equal desire to arrive at the truth, and under the sanction of the same oath.

'On the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence that fails to carry conviction to the minds of so many of their fellows.

'Now, ladies and gentlemen, when you are placed on a jury you...