People v. Burnstein
| Decision Date | 03 January 1933 |
| Docket Number | No. 202.,202. |
| Citation | 261 Mich. 534,246 N.W. 217 |
| Parties | PEOPLE v. BURNSTEIN et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Recorder's Court of Detroit; Donald Van Zile, Judge.
Raymond Burnstein and others were convicted of murder, and they appeal.
Judgment affirmed without prejudice to defendants' right to make motion in trial court for leave to file motion for new trial.
Argued before the Entire Bench.Friedman, Meyers & Keys, of Detroit, for appellants.
Paul W. Voorhies, Atty. Gen., and Harry S. Toy, Pros. Atty., and Miles N. Culehan and Edmund E. Shepherd, Asst. Pros. Attys., all of Detroit, for the People.
Upon trial by jury, defendants were convicted of murder in the first degree. Life sentences were imposed, and they have appealed. One reason assigned in support of the appeal is that defendants were not permitted to introduce testimony which they claim would have disclosed a motive on the part of others than the defendants for committing this crime. Appellants' brief presents this phase of the appeal as follows: ‘The defendants were endeavoring to show that Sutker, Lebovitz and Paul (the murdered men) were the members of a gang that had a feud with a gang of which one William Butler was a member; that William Butler was killed and that these men had something to do with the killing of Butler and as a result thereof, were killed in turn.’
In this connection appellants cite Sawyers et al. v. State, 15 Lea (83 Tenn.) 694, where it is said: ‘If there is proof in the possession of an accused tending to show that another had the motive, or was in condition to be acted upon by causes which might produce the motive to commit the offense, such facts may be shown as items of proof tending to establish a motive in the breast of such other person, and to that extent prove the existence of an hypothesis inconsistent with the guilt of the prisoner, the value of such evidence to be determined by the jury, who should give to it any such weight as its surroundings might justify.’
Subject to certain limitations, we accept the legal proposition advanced by appellants; but a careful review of this record fails to disclose an offer by defendants of any competent testimony tending to establish in any definite person or group of persons a motive for committing this crime.
‘An orderly and unbiased judicial inquiry as to the guilt or innocence of a defendant on trial does not contemplate that such defendant should be permitted by way of defense to indulge in conjectural inferences that some other person might have committed the offense for which he is on trial, or by fanciful analogy to say to the jury that some one other than he is more probably guilty.’ 8 R. C. L. 185.
The rulings of the circuit judge on this phase of the case were proper.
Appellants claim prejudicial error resulted from the following incident of the trial. On direct examination the people's witness McDonald identified one of the defendants as the driver of an automobile which left the scene of the murder shortly after the shooting occurred. Immediately after the shooting, four other men entered this automobile. Following McDonald's direct examination, defendants' counsel cross-examined him somewhat at length. Thereupon defendants' counsel requested permission to reserve the right of further cross-examination. An objection was interposed by the prosecuting attorney, and the following colloquy occurred:
‘Defendants' Counsel: I think we are entitled to investigate him.
Great care should be taken by prosecuting officers and trial courts that no statement be made in the presence of jurors which would jeopardize a defendant's right to a fair trial. But in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused. Appellants' contention relative to the above-quoted remarks is thus stated in their brief: ‘The jury might well infer from the foregoing that the defendants were members of a gang which would take vengeance on the witness McDonald for the testimony he gave, and thus prevent his appearance in court when required.’
It is not to be presumed that jurors in direct violation of their well-known duty indulge in unjustifiable inferences. Neither the statement of the prosecuting attorney or of the court, when fairly construed, is reasonably susceptible of the meaning placed upon it by appellants. Especially is this true in the light of the clear statement of the court as to what he did refer to. At best, appellants' contention in respect to this phase of the record is based upon an assumption or a possible construction of the record which is not sufficiently clear or definite to justify reversal.
Appellants complain of the trial court's ruling by which the prosecuting attorney was permitted to cross-examine Larry Pollock, one of the people's witnesses. This witness testified that about the time of the killing he saw a black automobile come out of the alley which extended past the rear of the apartment where the murder occurred; that it was going thirty-five or forty miles per hour, and hearly collided with the Ford truck which the witness was driving. Pollock further testified he saw the men in the automobile, and that he ‘got a very good look at the driver's face.’ But he also testified very positively that Burnstein was not the driver of this automobile. It developed that the witness had attended school with the defendant Burnstein. The prosecuting attorney claimed, and subsequently offered testimony, that Pollock had stated that he recognized defendants Burnstein and Keywell as occupants of the automobile that came out of the alley. Under the theory of the people that the defendants were then fleeing from the scene of the crime,...
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People v. Missouri
...so prejudicial as to cause the jury to suspend its own power of judgment in considering the matter before it. See People v. Burnstein, 261 Mich. 534, 538, 246 N.W. 217 (1933), People v. Christensen, 64 Mich.App. 23, 32, 235 N.W.2d 50 (1975). With this standard in mind, we proceed to conside......
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People v. Lawton
...impromptu remarks are to be held prejudicial." People v. DeLano, 318 Mich. 557, 569, 28 N.W.2d 909 (1947), citing People v. Burnstein, 261 Mich. 534, 538, 246 N.W. 217 (1933). Reynard May testified that he had seen "Mr. Cannon sitting outside the trial room" and told the investigating offic......
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Crawford v. Lydick
...a delayed application for leave to appeal without limitation of time. People v. Hurwich, 259 Mich. 361, 243 N.W. 230; People v. Burnstein, 261 Mich. 534, 246 N.W. 217." In Curry v. Ragan, 5 Cir., 257 F.2d 449, 450, certiorari denied 358 U.S. 851, 79 S.Ct. 78, 3 L.Ed.2d 85, the court "Neithe......
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McCrea v. Jackson
...to the trial court for leave to file a delayed motion for a new trial, on the grounds which he now presents. See People v. Burnstein, 261 Mich. 534, 542, 543, 246 N.W. 217; Nichols v. Houghton Circuit Judge, 185 Mich. 654, 152 N. W. 482, Ann.Cas.1917D, 100. Upon these authorities, a state c......