People v. Bartlett
| Decision Date | 03 December 1945 |
| Docket Number | 75.,Nos. 73,s. 73 |
| Citation | 20 N.W.2d 758,312 Mich. 648 |
| Parties | PEOPLE v. BARTLETT et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County; Earl C. Pugsley, judge.
Harry Bartlett and others were convicted of conspiracy to obstruct justice, and they appeal.
Affirmed.
Before the Entire Bench.
Schudlich & Jefferson, of Detroit, for appellants.
John R. Dethmers, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Daniel J. O'Hara, Asst. Atty. Gen., for the People.
These respondents, with others, were tried on an information charging them with the crime of criminal conspiracy and were convicted by a jury. They have prosecuted their appeals on the same record that was filed in the case of People v. Heidt, Mich., 20 N.W.2d 751. Reference is made to the opinion in that case for a statement of the general facts involved, the nature of the charge as set forth in the information, and the theory on which the prosecution was based.
These appellants raise the following questions:
constitutional rights under article 6 of the Bill of Rights in the Federal Constitution, and section 19 of article 2 of the Constitution of 1908 of the State of Michigan, guaranteeing unto a defendant in a criminal prosecution the right to a confrontation by witnesses?
At the opening of the trial counsel representing three of the defendants, Clark, Burczyk and Rick, moved the court for an order to require the special prosecutor to endorse on the information, as a witness for the people, the name of Heinrich A. Pickert. formerly police commissioner of the city of Detroit. The motion alleged that Mr. Pickert, during the period charged in the information, had been police commissioner and that, as such commissioner, he was a res gestae witness as to the offense charged in the information. In support of the motion, two affidavits, both executed by the attorney who made the motion, were presented. Said affidavits set forth in substance that the police commissioner was in charge of the police department of the city; that he was responsible for the enforcement of laws and ordinances relating to suppression of gambling; and that he was also responsible for the policies of the department and its methods of operation. One of the affidavits further set forth that, in the opinion of the affiant, Mr. Pickert was ‘a material and necessary witness to the res gestae of the offense as alleged and claimed by the State.’ In support of the statements made as to the duties of the police commissioner certain provisions of the city charter were quoted by counsel in his supplemental affidavit.
Following submission of the motion and argument thereon by counsel the court said:
The record does not show that the motion was subsequently renewed or called to the attention of the trial court in any way. An examination of the motion itself and of the supporting affidavits discloses that no facts are set forth on which a specific finding might have been made that Mr. Pickert was a res gestae witness. There was no showing as to what testimony he could or would give if called as a witness for the people. The failure to grant the motion at the time it was submitted was not error.
The general rule is that in a criminal prosecution it is the duty of the people to show, so far as it is possible, all parts of the transaction involving the particular criminal offense charged. The deliberate suppression of part of such transaction is repugnant to the constitutional guaranties protecting the rights of the accused. The names of res gestae witnesses must, under the statue,1 be endorsed and such witnesses called by the prosecutor, subject to the exception arising from the underlying reason for the rule, that testimony that is merely cumulative need not, under ordinary circumstances, be offered.
A general statement of the law of Michigan on this subject will be found in People v. Kayne, 268 Mich. 186, 255 N.W. 758, 761, where it was said:
‘The indorsement and calling of a witness by the prosecution is not required unless he is a res gestae witness. People v. Grant, 111 Mich. 346, 69 N.W. 647. And it is not the rule that all res gestae witnesses must be indorsed on the information and called by the State. People v. Kindra, 102 Mich. 147, 60 N.W. 458. Especially is this true when the offense charged is not a crime of violence. Bonker v. People, 37 Mich. 4. Instead the rule is that, apart from cumulation of testimony, any res gestae witness should be indorsed and called by the prosecution if the testimony of such witness is reasonably necessary to protect the accused against a false accusation. In People v. Long, 44 Mich. 296, 6 N.W. 673, it was held that failure of the prosecution to call a res gestae witness was not error because, as stated by Justice Campbell:
“His (the witness') position in regard to the facts was not such as to make him a necessary witness for the prosecution to enable defendant to be protected against a false accusation.”
As stated, the showing made before the trial court on the submission of the motion was insufficient to support a finding that Mr. Pickert was, in fact, a res gestae witness. Counsel for defendants, in whose behalf the motion was made, did not avail himself of the privilege of renewing the motion during the presentation of the people's proofs. Such failure must be construed as indicating an intent to abandon the motion.
In People v. Kayne, supra, on which appellants rely, the motion was made in advance of the trial and was denied. After testimony had been received the motion was removed, being based on the record as it then stood. Not having elected to seasonably renew the motion, appellants here are not in position to complain that the trial court did not, on his own motion, raise the matter for further consideration.
It is the claim of the people that the testimony in the record, which appellants argue indicates the various matters concerning which Mr. Pickert might have testified if called, shows clearly that such testimony would have been merely cumulative. There is much force to the claim but, inasmuch as the matter was not presented to the trial court after such testimony had been offered and received, it is unnecessary to consider the matter further. ‘3. The verdict rendered was contrary to law and was against the great weight of the evidence.
‘4. Did the State prove beyond a reasonable doubt that the appellants had knowledge of the alleged conspiracy?
We have examined carefully the testimony given at the trial, bearing on the alleged guilt of each of these appellants. With reference to the defendant Bartlett it was the theory of the prosecution that moneys were collected and were disbursed in the course of the conspiracy and for the furtherance of its purpose. The witness Boettcher testified to the circumstances under which Bartlett became an inspector, and that Bartlett contributed on a monthly basis to the so-called ‘Downtown pool.’ This witness, also, testified to statements made by Bartlett with reference to the collection of money in the precinct in which Bartlett was inspector. The weight to be given to this testimony as well as to other testimony of a circumstantial nature tending to implicate Bartlett was, of course, for the jury.
The witness above referred to further testified that defendant Harbison contributed to the ‘downtown pool,’ and stated the names of persons to whom money, collected in this pool, was paid out. People's witness Miller, a handbook operator, testified to the making of payments to Harbison in the sum of, approximately, $10,000 from January, 1939, until August of the same year. The witness Richards, a handbook operator, also testified to payments made to Harbison.
Another handbook operator, produced by the people, testified that he paid defendant Gallesero, on a monthly basis, in 1939. It is the claim of the people that such payments to defendants were made in the course of the conspiracy and for the purpose of obtaining protection. The testimony given by the witness referred to, against Gallesero, was corroborated by other proof as to contacts between the witness and said defendant.
Appellant Lynch was an inspector in the Detroit police department during a portion of the period covered by the information. People's witnesses, Broudy, McDonald and Barger, all testified to the making of payments to Lynch. There was also testimony with reference to payment of meat bills for this defendant.
With reference to defendant Watkins, the people's witness Booth testified that, commencing in August, 1938, he paid $300 per month to said defendant, the witness being a handbook operator in the precinct in which defendant was inspector. The witness Boettcher further testified to contributions made by Watkins to the pool and...
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