People v. Blazenzitz

• Decision Date: 21 December 1920
• Docket Number: No. 118.,118.
• Parties: PEOPLE v. BLAZENZITZ.
• Court: Michigan Supreme Court

212 Mich. 675
180 N.W. 370

PEOPLE
v.
BLAZENZITZ.

No. 118.

Supreme Court of Michigan.

Dec. 21, 1920.

Error to Circuit Court, Wayne County; Ormond F. Hunt, Judge.

Joseph Blazenzitz was convicted of murder in the first degree, and he brings error. Verdict and judgment set aside, and new trial ordered.

Argued before MOORE, C. J., and STEERE, brooke, fellows, stone, clark, BIRD, and SHARPE, JJ.

[180 N.W. 370]

Maurice E. Fitz Gerald, of Detroit (Hollis Harshman, of Detroit, of counsel), for appellant.

Robert T. Speed, of Detroit, Asst. Pros. Atty. (Matthew H. Bishop, Pros. Atty., of Detroit, of counsel), for the People.

CLARK, J.

On the evening of December 14, 1918, Thomas Houghton was shot in a bank at Redford. He died the following day. Respondent was convicted of murder in the first degree. The case is here on error. Error is assigned on the refusal of the trial court to grant a new trial on the ground of newly discovered evidence, and because of the failure of the prosecuting attorney to indorse upon the information the names of resgestae witnesses, known to him to be such prior to the time of trial, and because of the failure of the prosecution to call and produce such witnesses. There was proof of death and of the cause of death. The evidence of the people was circumstantial. The circumstance and incidents of respondent's arrest were related by police officers, which testimony tended to show that respondent was a man of bad character. Three witnesses testified to having seen respondent loitering in the street near the bank just before the shooting. Bert R. Vincent's place of business was on the street about 80 feet from the bank, the second door to the west and on the same side of the street. He testified that while in his place of business that evening he heard two shots, that a moment or so later two men came running by; that he ‘ran to the door’ ‘just inside of the door,’ from which place he saw the men running west on the street, ‘running away from the bank,’ and he testified that respondent was one of the men. Respondent, by his testimony and that of three other witnesses, sought to establish an alibi.

It appears from affidavits in support of the motion for a new trial and from those in opposition to it that Joseph Operhall and Eugene Vincent were in the street near the bank at the time of the shooting. Operhall says in an affidavit that, following the shooting, he saw two men leave the bank, and that at the time he was near the car track in the street in front of the bank. Vincent says in an affidavit that in an instant or so after the shooting he saw a man run down the steps of the bank and west on the street, and that he also saw another man leaving the bank, and Vincent claims to have been at the time in the street in front of the bank, and to have been pushed aside by one of the men leaving the bank. In their affidavits supporting the motion Operhall and Vincent say, in effect, that respondent was not one of the men (said by the people to be the respondent and one Norman Shaible) whom they saw there after the shooting.

By the record it appears that neither respondent nor his counsel knew, until after the trial, that Operhall and Eugene Vincent had seen the men leave the bank, and had knowledge of important facts in the case. But the prosecution had knowledge of the facts respecting Operhall and Eugene Vincent early in January, 1918. The information was filed February 25, 1918.

Opposing the motion affidavits were filed, showing that both Eugene Vincent and Operhall had made contradictory statements respecting the identity of men whom they saw leaving the bank, some of such statements being unfavorable to the respondent. There were affidavits tending to discredit seriously the character and credibility of Operhall. When the motion was argued the testimony of Operhall was taken, but not returned, by which the trial court says that he ‘apparently contradicted the statements made in the affidavit’ filed in support of the motion, and claimed that by promises he was induced to make the affidavit. The affidavit of an assistant prosecuting attorney says that in January, 1918, the respondent and Shaible were

[180 N.W. 371]

brought to the office of the prosecuting attorney, and were--

‘shown to Eugene Vincent and Joseph Operhall, and that the said Eugene Vincent and Joseph Operhall stated in the presence of this deponent that they were unable to identify the two defendants as the two men they had seen running from the Redford Savings Bank on the night of December 14, 1918.’

That respondent then learned or was advised that Eugene Vincent and Operhall had knowledge of material facts in the case is not shown. And although respondent was seen by Operhall on another occasion it is not claimed that he was known by respondent, nor are the affidavits of respondent and his counsel asserting such lack of knowledge on this record controverted. It is pointed out that there was testimony at the trial that just after the shooting Eugene Vincent was in the street in front of the place of business of Bert R. Vincent. Upon this showing it is contended by the prosecution that the motion for a new trial was properly denied, that the testimony of Operhall and Eugene Vincent, if produced, would have been cumulative merely; that no fact was suppressed; that their production would not have inured to the benefit of the respondent nor changed the result.

The showing of the prosecution might be persuasive and its contention sustained if the motion for a new trial related merely to the question of newly discovered evidence. The important question of fact on the trial was the identity of the murderers. By the failure of the prosecution to indorse the names of Eugene Vincent and Operhall as witnesses and to produce them at the trial, this being a case of homicide (see Bonker v. People, 37 Mich. 4), a serious question is presented, for upon this record the fact remains that Eugene Vincent and Operhall saw men leaving the...