People v. Bauman, 91

• Decision Date: 07 January 1952
• Docket Number: No. 91,91
• Citation: 332 Mich. 198,50 N.W.2d 757
• Parties: PEOPLE v. BAUMAN.
• Court: Michigan Supreme Court

Page 757

50 N.W.2d 757

332 Mich. 198

PEOPLE v. BAUMAN.

No. 91.

Supreme Court of Michigan.

Jan. 7, 1952.

Alean B. Clutts, Detroit, (Samuel Brezner, Detroit, of counsel), for defendant and appellant.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Solicitor Gen., Lansing, Daniel J. O'Hara, Asst. Atty. Gen., for plaintiff-appellee.

Before the Entire Bench.

SHARPE, Justice.

Defendant, Harold Albert Bauman, was tried on an information which alleged that 'on the 26th day of June, A.D.1948, at the City of Mt. Clemens in the County of Macomb aforesaid, one Harold Albert Bauman, feloniously, wilfully and of his malice aforethought, did kill and murder one Veda Bauman contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan.' He was found guilty of murder in the second degree and sentenced to life imprisonment.

Defendant and his wife, Veda Bauman, lived at 210 N. Gratiot avenue in the city of Mt. Clemens in a building where deceased's beauty shop was operated and in the rear of which defendant, Harold Albert Bauman, had his radio repair shop. Eighty-seven feet south of the Bauman home was a veterans' club, containing a bar, often frequented by the deceased. On June 25, 1948, defendant ate his dinner at his mother's home, went to a movie, returned home about 10 p. m., listened to a radio broadcast and then fell asleep. Shortly after 1 a. m., on June 26, 1948, he awoke and through the window saw his wife in the veterans' club drinking with one Robert Pett. At this time deceased closed the venetian blinds in the bar, thereby shutting off her husband's view. Defendant took his gun, went to the bar and shot his wife. He returned home and called the police. Mrs. Bauman died as a result of her injuries.

Prior to trial defendant was examined by Doctors Alfred E. Eyres, Alexander Grinstein and A. Tauber, psychiatrists appointed by the State hospital commission, who made the following report:

'Your psychiatrists have examined the defendant, Harold Albert Bauman, both singly and collectively, and herein submit a report of their findings as to his present mental condition.

'The patient is not psychotic. He is adequately able to aid and assist counsel in his own defense. He understands the nature of the charge pending against him and his relationship to it. There is presence of no mental disease, condition, or defect which would impair his criminal responsibility. Therefore, we recommend that he stand trial.'

The cause came on for trial resulting in a conviction of second-degree murder. Subsequently a motion for a new trial was made and denied. Upon leave being granted, defendant appeals and urges that he is entitled to a new trial because of newly discovered evidence.

As heretofore stated, defendant was examined by three psychiatrists, one of whom was Dr. Eyres. During the trial, Dr. Eyres was called by the people as a rebuttal witness and on cross-examination testified that the offense was premeditated and that defendant Harold Albert Bauman admitted he had planned the slaying. Subsequent to the conviction, counsel for defendant called upon Dr. Grinstein and Dr. Tauber separately and each stated that he had no recollection of the defendant having acknowledged planning the offense and that if such a statement was made by defendant he would have remembered it. Defendant also proposed to show by affidavit of Emma Bauman, his mother, that on or about July 25, 1948 (1949), subsequent to the trial, she called upon Dr. Eyres and asked him why he testified as he did at the trial relative to defendant planning the offense; that Dr. Eyres told her he had not so testified, became impatient indignant and ordered her from the office. The people filed an answer to defendant's motion for a new trial, which answer included a letter from Dr. Eyres in which he reaffirmed his statement made at the trial that defendant had premeditated homicide and stated he also informed Mrs. Bauman that the statements made at the trial were correct. It is to be noted that the statements of Dr. Grinstein and Dr. Tauber were presented to the trial court through the affidavit of counsel for defendant. The granting of a new trial on the ground of newly discovered evidence generally rests in the sound discretion of the trial court.

In Canfield v. City of Jackson, 112 Mich. 120, 70 N.W. 444, 445, we discussed the requisites of newly discovered evidence. We there said: 'To entitle one to a new trial upon this ground it should be shown: First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence be not cumulative merely; third, that it be such as to render a different result probable on a retrial of the case; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial.'

See, also, People v. Inman, 315 Mich. 456, 24 N.W.2d 176; People v. Paugh, 324 Mich. 108, 36 N.W.2d 230.

In our opinion the affidavits of defense counsel and Mrs. Bauman did not warrant the trial court in granting a new trial.

It is also urged that it was error to have permitted Dr. Eyres to give evidence as to premeditation. The record shows that Dr. Eyres was called by the people as a rebuttal witness and upon cross-examination by defendant's attorney the following questions were asked and answers given:

'Q. You as a physician and psychiatrist are in no position to tell this jury or anyone else whether there was any premeditation in the mind of Mr. Bauman or anyone else?

'Mr. Jacob (prosecuting attorney) I object. That is a question for the jury to decide, asking for a conclusion.

'A. I feel I am in position to tell the jury and also you that this was definitely premeditated.

'Q. Are you in position to state what was in that man's mind over a given period? A. He went over it very carefully and very thoroughly with me.

'Q. Will you tell the jury the story he told you.

'Mr. Jacob: I object.

'Mr. Day (defendant's attorney) I am entitled to know what he bases his conclusions on.

'The Court: He may answer.

'A. I will narrate the story briefly. The story that the prisoner gave to me was stress and striving and strain of long duration with his marital partner. He told me that for a long period of time his wife had been given to alcoholic excesses at various periods of time. He also told me that they had really never got along throughout their marital life or throughout their marital existence. He told me about securing the gun he had obtained and admitted to me he had shot his wife. He admitted to me he planned it ahead of time, wasn't something he did on the spur of the moment.

'Q. Doctor, he told you that? A. Yes, he did, and he went through the details of going into the tavern and asking where the wife was and of shooting the shots and then leaving and then calling the police. Those are the things I recall. He didn't tell me that he couldn't remember what happened after the blinds were closed. I examined Mr. Bauman on the 25th of July at 7850 East Jefferson Avenue in Detroit.'

It is to be noted that the prosecuting attorney offered two objections while the cross-examination was being conducted. It clearly appears that the answers given were in response to the questions asked. We are of the opinion that this issue is controlled by People v. Geanakopoulos, 320 Mich. 430, 31 N.W.2d 683, 685. In that case defendant was tried for statutory rape. The attorney for defendant, on cross-examination had the complaining witness testify as to other acts of intercourse than the offense charged. Upon appeal, defendant urged that such testimony was not admissible for any purpose and the trial court should have charged the jury not to consider it for any purpose whatsoever. We there said:

'The position now taken by defendant's counsel is directly contrary to that taken by defendant's attorney at the trial; and further defendant did not request the court to charge the jury that the testimony should not be considered for any purpose. See People v. Barringer, 311 Mich. 345, 18 N.W.2d 850; 3 Comp.Laws 1929, § 17322, Stat.Ann. § 28.1052. As indicated, the testimony of which defendant now complains was brought into the case in his behalf by his own attorney. Hence it might well be said in the instant case, as in People v. Prevost, 219 Mich. 233, 245, 189 N.W. 92, 96: '* * * if any ill effects resulted from it in the minds of the jurors, the defendant has the satisfaction of knowing that no one was to blame for the outbreak but himself.''

In the case at bar defendant's counsel made no request of the trial court to instruct the jury to disregard such testimony. It is now too late to complain.

It is also urged that in the absence of testimony as to premeditation it was error to permit the jury to consider defendant's guilt of first degree murder. Such a claim cannot be considered as it is based on the theory that there was no testimony as to premeditation. In addition to the testimony of Dr. Eyres there is testimony that defendant did not appear at the V. F. W. hall until from 8 to 20 minutes after Mrs. Bauman closed the venetian blinds; that when defendant entered the hall he asked, 'Where is she' and proceeded to the table where she was sitting and began shooting.

In People v. Wolf, 95 Mich. 625, 629, 55 N.W. 357, 358, we said: '1. The learned counsel for the respondent contends that there was no evidence to sustain the verdict, because there was no proof of previous deliberation or premeditation. This would result in holding that the deliberation and premeditation cannot be inferred from the...