People v. Bigge

• Decision Date: 11 March 1941
• Docket Number: No. 116.,116.
• Citation: 297 Mich. 58,297 N.W. 70
• Parties: PEOPLE v. BIGGE.
• Court: Michigan Supreme Court

297 Mich. 58

297 N.W. 70

PEOPLE

v.BIGGE.

No. 116.

Supreme Court of Michigan.

March 11, 1941.

C. G. Bigge was convicted of embezzlement, and he appeals.

Conviction set aside and new trial granted.Appeal from Circuit Court, Manistee County; George W. Sample, judge.

Argued before the Entire Bench.

Kim Sigler, of Hastings, and Max Hamlin, of Manistee, for defendant and appellant.

Rupert B. Stephens, Pros. Atty., and Howard L. Campbell, Sp. Pros. Atty., both of Manistee, for plaintiff and appellee.

BOYLES, Justice.

Defendant appeals from conviction for embezzlement in trial by jury in Manistee county. A conviction for the same offense on a former jury trial was reversed by this court and the case remanded for a new trial. People v. Bigge, 288 Mich. 417, 285 N.W. 5. Appellant now seeks his discharge, or a reversal, for several reasons which will be considered in order.

Appellant claims he should be discharged on the ground of former jeopardy because of certain occurrences between the first and second jury trials. After the first conviction was reversed, the case was set for jury trial in Manistee county September 8, 1939. After some time consumed in its selection, a jury was finally accepted and sworn shortly before the noon adjournment on September 11, 1939. Immediately after adjournment, the public, jurors, and counsel proceeded to leave the courtroom by stairways, descending to the lower floor of the courthouse. The special prosecutor observed the defendant and one of the jurors engaged in conversation somewhat privately at the bottom of one of the stairways. The trial judge was called from the courtroom to a place where he could, and did, observe the defendant and the juror engaged in this apparently private conversation. The trial judge, after observing the same called the defense counsel and both court and counsel observed the incident, after which the defendant recognized the trial judge watching him and walked away. Although the length of time is in dispute, apparently defendant and the juror conversed together two or three minutes. No one claims to have heard what was said. When court was resumed after the noon recess, the court requested counsel to retire to the judge's chambers where a conference was held between the court and counsel for fifteen minutes, after which they reentered the courtroom. The special prosecutor thereupon, in the presence of the jury, started to refer to the conversation and asked to make a motion. Counsel for defendant thereupon stated: ‘Mr. Sigler: If Mr. Campbell makes any statements, I ask that he be sworn. This case has been reversed because of prejudicial remarks—we had to go to the Supreme Court and it was reversed because of prejudicial remarks by Mr. Campbell.’

Mr. Campbell was thereupon sworn by the clerk, and stated:

‘I saw Alphonse Carboneau talk at the foot of the stairway in this building to Mr. Bigge. I immediately called to witness it, Mr. Donald MacDonald who stood alongside of me. I immediately called his Honor, Judge Sample. Judge Sample discussed the matter briefly. He turned and walked back into the court room and related it to Mr. Sigler or to Mr. Powers.

‘The court: I first called Mr. Powers and Mr. Powers called Mr. Sigler. That was because Mr. Powers was nearer to me.

‘Mr. Campbell: That was right you did first call Mr. Powers. He was nearer and he called Mr. Sigler. Because of this misconduct of the defendant in this case, as well as juror Alphonse Carboneau, I am satisfied that the People of the State of Michigan can not receive a fair and impartial trial, which the law accords them. I will ask that this jury, because of the misconduct of Mr. Carboneau and the defendant in this case, be dismissed and that the case stand ready for trial at the next term of court or until a suitable jury can be selected.’

He further stated he did not know what the conversation was; that it lasted at least three minutes; that he didn't hear the conversation but saw their lips moving. Counsel for defendant objected to granting of the motion for mistrial. The court then said:

‘On what I saw I wouldn't convict anyone. I don't know how long the conference had been going on between Mr. Carboneau and Mr. Bigge. It could have been a few minutes, but at the time Mr. Bigge recognized me watching him, he walked off immediately. He wasn't talking at that time. I couldn't tell—Mr. Carboneau, I think, whose back was turned my way—I couldn't tell whether he was engaged in a conversation or not, but the harm to this case is done.

* * *

‘This cause could not now proceed with any degree of fairness and it does not require any investigation. That is why I asked to have a conference without a jury. The jury may have unique ability to try to get this out of their minds and after the trial of the cause—and after hearing the trial of this cause, they wouldn't be trying this matter upon the merits of this case.

‘It doesn't make any difference how hard you try—he can't get this out of his mind. It might prejudice the people or it might prejudice Mr. Bigge. It doesn't make any difference to me. It would be my duty to dispose of the matter right here, before putting the county of Manistee to further expense. The expense hasn't been a great deal thus far, just the expense of selecting the jury, which is regrettable, in as much as we get nothing from it. The court can't after a statement of this kind, in which the court has had to engage, the court could not allow the case to proceed because of the prejudice.’

The court thereupon granted the motion and ordered the cause to proceed at the following term of court. Subsequently the defendant filed a plea of former jeopardy and a motion to discharge the defendant, which was heard upon the opening of court before calling a jury in the present trial. The court denied the motion.

The Constitution (1908), art. 2, § 14, provides: ‘No person, after acquittal upon the merits, shall be tried for the same offense.’

The code of criminal procedure, ch. 3, § 5, 3 Comp.Laws 1929, § 17133, Stat.Ann. § 28.858, provides: ‘No person shall be held to answer on a second [2nd] charge or indictment for any offense for which he has been acquitted upon the facts and merits of the former trial but such acquittal may be pleaded or given in evidence by him in bar of any subsequent prosecution for the same offense.’

This State is committed to the view upon the subject of former jeopardy adopted by the Federal courts under the Federal Constitution. An accused is prima facie in jeopardy when his trial has been entered upon and progressed through selection and swearing of a jury. People v. Schepps, 231 Mich. 260, 203 N.W. 882. Whether or not circumstances establish that a mistrial should be declared rests in the sound discretion of the trial judge.

‘In our effort to see that the rights of persons accused of crime are protected, we should not overlook the fact that the people also have interests that should be safeguarded. It is a right of which the accused cannot be deprived to have his case tried by an impartial jury. The people have an equal right to have their case tried by a jury no member of which has obtained a place thereon for the purpose of preventing a righteous verdict. If during the progress of the trial the trial judge learns, or it is satisfactorily made to appear to him, that one or more jurors had obtained places on the jury intending to convict the accused whatever the evidence, can there be any doubt that it is not only his right but his duty to say there has been a mistrial? Can there be any doubt of the converse of this proposition? The accused has a right to a trial by a fair and impartial jury, but he has no vested right to a trial by a jury some member of which is not impartial, but who obtained his place thereon for the purpose of acquitting the accused whatever might be the evidence. The trial judge would not be justified in discharging a jury and declaring a mistrial for slight cause, but if the facts exist, as found by the trial judge after a careful investigation made by him, it would be a reflection upon the administration of justice to say the trial must proceed. The conduct of the two jurors and of the court officer indicate a very strong probability that improper influences were at work which might affect the verdict of the jury, and justified the conclusions of the trial judge.’ In re Ascher, 130 Mich. 540, 90 N.W. 418, 422,57 L.R.A. 806.

In People v. Schepps, supar [231 Mich. 260,203 N.W. 885], this court held: ‘This court is not required to pass upon the wisdom of the course the trial court pursued, but upon whether there were sufficient circumstances shown for a basis of the trial court's decision that the juror was disqualified from serving in the case, and in that connection whether it affirmatively appears there was an abuse of the discretion with which the trial court was endowed. To constitute a finding of former jeopardy requiring us to reverse this case and discharge the defendant the action of the trial judge must have been such that this court can affirmatively find there was no manifest necessity or that the ends of public justice would not have been otherwise defeated. Upon this record we are unable to so find.’

In the case of People v. Diamond, 231 Mich. 484, 204 N.W. 105, 106, after a jury had been sworn and a witness examined, when court convened after recess, the prosecutor, in the absence of the jury, stated to the court that the daughter of the defendants was at the lunch table with two of the jurors. The daughter, as well as the two jurors, were thereupon questioned by the court and they all denied in substance any conversation having any particular bearing upon the trial. The trial court discharged the jury. The court held: ‘What occurred necessitated the exercise of the court's judicial discretion in granting or denying the motion of the prosecutor. Unless there was a clear abuse of such discretion, we should...