People v. Carey

• Decision Date: 29 January 1901
• Citation: 125 Mich. 535,84 N.W. 1087
• Court: Michigan Supreme Court
• Parties: PEOPLE v. CAREY.

84 N.W. 1087

125 Mich. 535

PEOPLE v. CAREY.

Supreme Court of Michigan

January 29, 1901

Error to circuit court, Lapeer county; George W. Smith, Judge.

James Carey was convicted of larceny, and he brings error. Affirmed.

James A. Muir, for appellant.

Horace M. Oren, Atty. Gen., and I. J. Kohler, Pros. Atty., for the People.

HOOKER J.

The defendant was convicted of the offense of larceny of some cattle, which the evidence shows to have disappeared from their owner's field, and later to have been butchered in Port Huron, with the exception of one, which was found upon the premises of the father of an alleged particeps criminis of the defendant, who had, previous to the trial in this case, been convicted of the same offense that the defendant was subsequently convicted of. No witness was produced who saw the cattle taken from the field, but several testified to meeting two men driving some cattle about the time, and the record contains evidence of identification of the cattle sufficient to warrant a jury in concluding that they were the cattle alleged to have been stolen. One witness (Laidlaw) identified the defendant and William Davis, as the men driving said cattle, and testified that he had known them 10 years, and that he talked with them upon this occasion and was told that they intended to take them to their farm i. e. the farm of John Davis. This is the farm where the steer was afterwards found. The other witnesses were unable to identify the defendant, and a photograph was produced by the prosecution, and they were asked if they had seen it before. They stated that they had seen it in the hands of the sheriff, soon after the alleged larceny, and had identified it as closely resembling one of the men seen by them driving the cattle. One of these witnesses (Spencer) testified as follows upon this subject: 'Q. Have you seen a picture since that which resembles either of the men? A. I have. Q. Without turning them over on the back, will you look at these pictures, and see whether or not there is a picture there that resembles either of the men? (Objected to as incompetent and immaterial.) Court: The simple statement of resemblance would not be material, but he can give his best judgment and belief as to whether it was one of the men. (Exception for defendant.) Q. Look at this, and see if you can pick out one of them there that is the picture of the man, in your best judgment? Mr. Loughnane: I object to that. What would that prove? Court: Standing alone it would not be much, but I assume it is preliminary to something else. (Exception for defendant.) A. There is a picture there that looks like the man, marked 'Exhibit X.' I saw this picture soon after the 10th,--some time after. Q. I will ask you whether or not a couple of men were arrested near your place of residence with stolen cattle. Court: Answer that yes or no. A. I don't know. Q. Did you hear of a couple of men being arrested? (Objected to as incompetent.) Court: Take it. (Exception for defendant.) Court: Answer yes or no. Q. Some time after that, three or four months, in August or September? A. I did.

It was shortly after their arrest that this picture was shown to me. I could not tell whether there were more pictures than one or not. Q. At that time you picked out the man as being with the cattle? A. I thought it was. I could not tell. I could not say whether or not he had glasses on that time. Mr. Kohler (to respondent): Will you take off your glasses and stand up? Mr Loughnane: I object to that as incompetent and immaterial. Court: He is not obliged to do that, Mr. Kohler. A. I have never seen the respondent before except on the day of examination. I don't think that he very much resembles the man that I met. I could not describe the man that I saw with reference to his beard.' Mr. Brown testified: 'I saw the respondent on the 7th of January. He don't look like the man that I saw on the 5th day of July driving these cattle. That man had a mustache, and he looked darker complexion. He did not wear glasses those times. Mr. Kohler Remove your glasses, please (addressing the respondent). Mr. Loughnane: I object to that. Court: I don't think I can compel him to do that. Q. What do you say, in your judgment, as to his resembling or being the man you saw there? A. I should think he resembled the man some, but I would not say so positively. Sheriff Myers showed me those pictures. I didn't look at any of the pictures except on the face, I think. I saw the pictures twice, one side of this. Q. Is that the picture you picked out resembling the man, or was that it? A. Yes, that is about the way I saw it. It is the same picture I picked out each time.' The photographer identified the defendant as the original of the picture. The sheriff was then sworn, who testified that: 'I reside in Mt. Clemens, and lived there in 1897, and was sheriff of Macomb county at that time. I recognize this respondent as James Carey. He was in my custody while I was sheriff. Q. How did he come to be in your custody? A. I was notified on the 6th of August, 1897, by telephone, that Mr. Hesner's cattle were stolen in the township of Bruce, and I sent a deputy on the trail, and he went to Almont, I think, and saw Mr. Myers, a deputy, at that time, under Demorest, a sheriff here. They had one man, and wanted to arrest the other, and wanted me to come up there; and I took the train to Romeo, and a livery rig to Almont, and when I...