People v. Cammarata

• Decision Date: 04 January 1932
• Docket Number: No. 217.,217.
• Citation: 240 N.W. 14,257 Mich. 60
• Parties: PEOPLE v. CAMMARATA.
• Court: Michigan Supreme Court

257 Mich. 60

240 N.W. 14

PEOPLE

v.CAMMARATA.

No. 217.

Supreme Court of Michigan.

Jan. 4, 1932.

Appeal from Recorder's Court of Detroit; Donald Van Zile, Judge.

Frank Cammarata was convicted of robbery while armed with a dangerous weapon, and he appeals.

Affirmed.

Argued before the Entire Bench.

Frederick B. Brown, of Detroit, for appellant.

Paul W. Voorhies, Atty. Gen., and Harry S. Toy, Pros. Atty., and Edmund E. Shepherd, Asst. Pros. Atty., both of Detroit, for the People.

POTTER, J.

Defendant was arrested, informed against, tried, and convicted of having on July 1, 1925, robbed Frank A. Zeitz of the sum of $2,100, being armed with a dangerous weapon. Zeitz was the teller of a branch of the People's Wayne County Bank. The robbery was a robbery of the bank. After conviction a motion for a new trial was made and overruled. Defendant brings error. Defendant contends that during the time he was in custody at St. Louis, Mo., an officer placed a straw hat upon his head and he was then identified as one of the persons participating in the robbery. It is claimed this constituted an invasion of the defendant's constitutional rights. There is no question but defendant is privileged against self-incrimination. Things improperly taken from him may not be used against him in a criminal case if they are taken unlawfully, but this is subject to many exceptions. The rule is not so broad as to protect a person accused of crime from the production of evidence against him of forged documents, false keys, counterfeit bills, and other incriminating things found in his personal possession upon arrest.

In People v. Wittersheim, 252 Mich. 538, 233 N. W. 407, a doctor who examined defendant's shoulder without objection was permitted to testify to the result of his examination on the authority of People v. Collins, 223 Mich. 303, 193 N. W. 858 and People v. Corder, 244 Mich. 274, 221 N. W. 309.

In People v. Breen, 192 Mich. 39, 158 N. W. 142, defendant was charged with breaking and entering. Tracks were found in the vicinity of the building entered. The officers took defendant's shoes and compared them with the tracks and testified that the shoes fitted the tracks. It was held that the defendant was not thus compelled to furnish testimony against himself.

In People v. Ballard, 204 Mich. 58, 169 N. W. 844, in an attempted rape case, a monthly report of the defendant, a paroled prisoner, to the warden of the prison was found at the scene of the assault. It was offered in evidence and objected to, but it was held that the admission of this testimony did not constitute proof of another distinct crime and was admissible as a part of the res gestae.

In People v. Sturman, 209 Mich. 284, 176 N. W. 397, the court held that it was quite likely it would have been error to compel the witness against objection to sign his name in the presence of the jury, First National Bank v. Robert, 41 Mich. 709, 3 N. W. 199; but that where he voluntarily and without objection, made his signature, he thereby waived his constitutional privilege. In this case no objection was made at the time the hat was placed upon the defendant's head and none at the time the testimony was introduced. We think under the facts there was no invasion of defendant's constitutional privilege against self-incrimination.

Defendant was arrested upon a complaint and warrant made September 8, 1925. He was arraigned on September 22, 1925. On October 28, 1925, a capias was issued for the rearrest of the defendant. His examination was continued through the month of November and until December 22, 1925, when defendant failed to appear. His recognizance was forfeited, and capias issued for his arrest, and on January 19, 1926, he was held for trial. Bail was fixed at $25,000 with two sureties. On February 3, 1926, he was arraigned, pleaded not guilty, and the case set for trial February 9, 1926. Bail was fixed at $50,000 with two sureties and was not furnished, and defendant was remanded to the custody of the sheriff. On March 25, 1926, on motion of defendant's counsel and upon consent of the assistant prosecuting attorney, defendant's bail was reduced to $25,000 with one surety. Here the case rested until July 11, 1927, when his recognizance was ordered forfeited and a capias issued. But on the next day the order forfeiting the recognizance was set aside and vacated and the cause set for trial July 19, 1927. On July 15, 1927, the cause was continued indefinitely. Nothing appears to have been done in the case during the remainder of 1927 and all of 1928. On September 12, 1930, the cause was continued until September 19, 1930, when defendant's recognizance was against forfeited and capias issued. January 26, 1931, defendant having been rearrested, the capias issued was ordered canceled and his bail was fixed at $100,000 with one surety. The cause was continued at different times and on February 20, 1930, trial began. Defendant was convicted and remanded to the custody of the sheriff until February 26, 1931, at which time he was sentenced to state's prison in Jackson for not less than 15 years nor more than 30 years. Upon trial of the case the following occurred:

‘If your honor please I offer the files and records of this case, being the file in the matter of People v. Frank Cammarata, No. 60231, for the purpose of showing the record of the bond forfeitures of the defendant.

‘The Court: I guess they are all part of the case. I will receive them.

‘Mr. McCrea: I want the record to show that according to the complaint in this case the defendant was arraigned on September 22, 1925, and that an examination was held and a bond of $25,000, two sureties entered.

‘Mr. Payne: We object to the introduction of the file for the purpose of showing bond forfeitures. I submit that is not material to the issue here. It is part of the records and files in the case, that is true, but as to whether or not there was a forfeiture of the bond, I submit that is not any explanation of guilt or innocence and it has no bearing on the defendant's guilt or innocence.

‘Mr. McCrea: I claim-

‘Mr. Payne: It is just part of the public records. I submit it is not competent.

‘The Court: Objection overruled.

‘Mr. McCrea: I want the record to show that on December 2d, 1925, this bond that I have just mentioned was forfeited before Judge Skillman in this court and the defendant's rearrest ordered at that time; that the forfeiture was set aside on July 9th, 1926 and the bond reinstated.

‘Further, that on July 11, 1927 the day the case was set for trial, the defendant failed to appear and that his bond was again forfeited before Judge Bowles in this court building; later on then again the bond was reinstated.

‘Further, that on September 19, 1930, the bond was again forfeited before Judge Boyne on defendant's failure to appear. That judgment was entered on that bond before Judge Cotter of this court on January 11, 1930, and an execution issued attempting to recover the amount of the bond.’

Upon the argument of the case the assistant prosecuting attorney said: ‘Now then we have shown, and it has been permitted to stand on this record, because this case is an old case, it is of long standing, the time that has passed between July 1st, 1925, and February 21st, 1931, and it is for that reason the court has permitted the testimony in here, the evidence in here of the bond forfeitures of this defendant, of the number of times when the case was ready for trial, when he was ordered to appear for trial by the court, that he did not appear. And that is important evidence, ladies and gentlemen, because this court will undoubtedly charge you that flight is always evidence of guilt. It is not consistent with innocence. If a man is innocent he does not run. And the people claim he did run on several occasions. They claim he jumped his first bond in St. Louis when the governor had given the state of Michigan permission to bring him back on extradition papers. The people claim he jumped his second bond in this case before one of the judges of this court; and they claim he jumped another one later on, and finally was apprehended and brought here and is now before you ladies and gentlemen on trial. Is that significant testimony in this case? Don't you think that it is some explanation of why this case is tried at this time in this court. If this defendant was innocent why didn't he appear for trial when ordered to by this court. If he was innocent when he was apprehended in St. Louis on this crime, why did he jump his bond there and the governor of the state of Missouri said, ‘The people of the state of Michigan can have this prisoner to take him back and try him in Michigan.’'

It is urged that the ruling of the court permitting the introduction in evidence of the records and files in the case showing the forfeiture of defendant's recognizance coupled with the argument of the prosecuting attorney constituted error.

Evidence of flight is admissible. Admissibility is justified upon many grounds. ‘The wicked flee when no man pursueth’ is frequently quoted as the scriptural foundation for its admissibility. Man in modern cosmopolitan society with readily accessible means of rapid transportation is constantly moving in the regular pursuit of business and pleasure. That one leaves home is of itself no evidence of guilt. It it was, the presumption of guilt would be raised against everyone.

At common law if one accused of crime subsequently fled, his goods were forfeited and escheated to the crown, ‘For although he be found not guilty, yet he shall forfeit his goods by the flying.’ Foxley's Case, 5 Coke Repts. 109B. The crown was active to protect and augment its revenues. In all cases of flight, crown counsel appointed by the king were bound to bring the matter of flight and consequent forfeiture of goods to the attention of the court. The broad ground upon which such evidence is generally held admissible is, not that it is substantive...