People v. Brosky

• Decision Date: 27 April 1923
• Docket Number: No. 135.,135.
• Citation: 193 N.W. 194,222 Mich. 651
• Parties: PEOPLE v. BROSKY.
• Court: Michigan Supreme Court

222 Mich. 651

193 N.W. 194

PEOPLE

v.BROSKY.

No. 135.

Supreme Court of Michigan.

April 27, 1923.

Error to Recorder's Court of Detroit; Wm. M. Heston, Judge.

Joseph Brosky was convicted of gross indencency, and he brings error. Judgment reversed, and defendant discharged.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Clark and Sharpe, JJ., dissenting.Nichols, Nichols & Nichols, of Detroit (L. E. Barnett, of Detroit, of counsel), for appellant.

Merlin Wiley, Atty. Gen., and Paul W. Voorhies, Pros. Atty., and W. Gomer Krise, Asst. Pros. Atty., both of Detroit, for the People.

BIRD, J.

Defendant was charged with the offense of gross indecency in the recorder's court in the city of Detroit. The matter came on for trial on March 24, 1922. The testimony offered by the people tended to show that the indecent act was committed in the men's toilet at the Grand Trunk passenger station. Nichols Klee, a Grand Trunk Railway employee, testified that he observed defendant through the skylight commit an act of gross indecency upon the person of one Annis, who was in the adjoining apartment, and that it was accomplished by means of a hole in the partition separating the two apartments. The inference was that defendant committed the act while seated on the stool in his apartment. Other testimony was introduced in corroboration of this testimony.

Defendant's counsel, Mr. Nichols, offered himself as a witness on behalf of his client. It appeared from his testimony that he had gone down to the station and looked over the situation. He evidently did not agree with the testimony of Klee as to the relative position of the seat and the hole in the partition. The material part of Mr. Nichols' testimony was as follows:

‘Q. Before going down there, you read over the testimony given by Mr. Klee in the examination? A. I read the testimony and wanted to see for myself. * * * Stool No. 2 and No. 3-there was a man in No. 4. I didn't go in that one, but I went into the other stools to see exactly the situation there, and looked up at the skylight over stool 4, where this man was. There was a skylight which you could see some one had been erasing off a little hole about that. The rest of them were covered with soot, because I went on the outside and looked at them. It looked as though they had never been cleaned. As I sat in those stools, No. 2 and No. 3, as it came out in the examination, there is a partition between them, and there is a hole, but you had to get away to the edge of the stool, like that (indicating), get away up here to look through, and your head would nearly touch the door.

‘The Court: You were stretching your neck as far as you could?

‘A. I did. I was much interested in this case, and very much so, your honor, because it is a serious case. I looked and stretched my neck as far as I could without falling off the stool, and then only looked through it slanting. I could not get right straight opposite, like that, but I could see through that way (indicating), and the door was right there (indicating).

‘The Court: And you were unable to get your mouth up to the hole?

‘A. I think that remark is uncalled-I did not, sir, and I resent your remark. I did not try to put my mouth to the hole, and I think your remark is uncalled for.

‘The Court: What?

‘A. I did not try to put my mouth to the hole; that remark was uncalled for.

‘The Court: What do you mean, sir? I am trying to determine whether it is physically possible for that act to be committed?

‘A. I did not put my mouth to that hole there.

‘The Court: What do you mean by making that statement, Mr. Nichols?

‘A. I mean this. I did not put my mouth to that hole; I did not.

‘The Court: Are you in a position to apologize for that statement?

‘A. I apologize for that; I think the remark was uncalled for.

‘The Court: You are fined $25 for contempt.

‘A. All right, sir.

‘The Court: Or spend ten days in the county jail. That is all.

‘I think, in view of what has taken place, it will be necessary to call this case a mistrial.

‘Mr. Kent: At this time, your honor, I move to call this case a mistrial.

‘Mr. Healy: And at this time I move for a separate trial for the defendants.

‘The Court: Very well.’

The jury was then dismissed from further duty in the case. The matter came on for trial again on April 24th and defendant's counsel asked permission for defendant to withdraw his plea for the purpose of making a motion. This was granted. Counsel then moved to quash the information on the ground that defendant had been formerly in jeopardy on the same charge. This motion was overruled by the court. The proofs proceeded, and defendant was convicted as charged.

The sole question raised is whether the episode at the first trial was adequate cause for dismissing the jury. With reference to the power of courts to dismiss juries, it is observed by Ruling Case Law:

‘American authorities generally announce the rule that the power to discharge the jury is within the sound discretion of the trial judge, and that his exercise of such discretion will not be reviewed by the appellate courts unless its clear abuse appears. The power ought, of course, to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.’ 16 R. C. L. 321.

In the case of People v. Parker, 145 Mich. 488, 108 N. W. 999, the rule was announced that under our Constitution (section 29, article 6) a jury impaneled, accepted, and sworn cannot be discharged, except for inability to agree, or for some other overruling...