People v. Carr

• Decision Date: 03 February 1887
• Citation: 31 N.W. 590,64 Mich. 702
• Court: Michigan Supreme Court
• Parties: PEOPLE v. CARR.

31 N.W. 590

64 Mich. 702

PEOPLE v. CARR.

Supreme Court of Michigan

February 3, 1887

Error to circuit court, Gratiot county.

Indictment for murder.

Moses Taggart, Atty. Gen., for the People.

Wisner & Draper, for defendant.

CAMPBELL C.J.

Respondent was convicted of the murder of one Fanny Osborne, who died June 16, 1884, of bruises inflicted the day before, or just before the beginning of that day. The only witness who connected her death with violence committed on her was Dr Scott, who attended her on the 15th, during the day, and about midnight, and to whom she made an ante mortem declaration. His testimony on this trial was that she described the offense as entirely committed by one Murphy who is now deceased. The court instructed the jury that the case relied on by the prosecution could only be made out by the joint action of respondent and Murphy, the testimony of which was given solely by one Daisy Young, who placed the violence during the day, and not the night, of June 14th. As the case went to the jury, no claim was made for the prosecution, as the court put it to the jury, that death was caused by any act of Carr alone, or any act previous to the one just referred to. There was testimony of blows inflicted several days before both by Carr and by Murphy separately but the medical testimony shows they had nothing to do with the fatal result, and no claim was made that they did.

No charge was asked, and no error is assigned, upon the form of the indictment, and therefore we shall not rest any decision upon it. But it becomes somewhat material in considering such questions as do arise on the record There is no preliminary examination shown, and the complaint was not by information but by indictment. Neither is the indictment in the general form allowed by statute. It purports to set out the crime specifically and circumstantially in the common-law method; so that, in considering the case, this cannot be overlooked, and it must be applied and construed by common law rules. Chapman v. People, 39 Mich. 357.

A brief outline of the controversy will show all that is necessary to understand the questions presented for decision. Respondent, who is evidently a very depraved man, but who cannot, under an indictment for murder, be convicted unless he is guilty of murder, was owner of a house of ill fame kept for him by one McCarty, in the town of Meredith, in Clare county. Respondent did not live there. There were four women who were inmates of the house, of whom the murdered woman was one. There was a dispute whether Daisy Young was there until after this woman died. If she was not then an inmate of the house, there was no case made out. One Murphy was bartender, and a special intimate of the dead woman. At some time in the day or night of June 14th, Fanny Osborne, while in a lower room where dancing was going on, was brutally and fatally struck and kicked by Murphy; and Daisy Young said that Carr, the respondent, beat and maltreated her first, and then told Murphy to finish her; he himself going away, and not being present while Murphy so abused her. She was taken upstairs to a bed-room, where, on the next day, Dr. Scott attended her twice,--the second time late at night; and it was during the second visit that he made a full examination, and ascertained the extent and character of the injuries, and told her they would be speedily fatal, and urged her to explain how they were given. She told him that Murphy was the person who inflicted the violence, describing it fully, and naming no one else. Dr. Scott denied positively that she made any allusion whatever to Carr. No complaint was made, and no arrest had, for some time thereafter. It does not appear from the record that any such action preceded the indictment. This indictment was found March 18, 1885, at which time Murphy was dead. In May, 1885, a trial was had in Clare county, but the jury disagreed, and were discharged. The judge who tried the cause (Judge HART) then, upon motion, changed the venue to Gratiot county, and in the latter county presided at the second trial, which was held in December, 1885. Defendant was convicted of murder in the second degree, and sentenced to 15 years' imprisonment in the state's prison at Jackson. The cause comes up on writ of error.

The indictment charges Carr (mentioning no other person) with striking the deceased with a pair of brass knuckles on the tenth of June, 1885, and thereby giving her a mortal wound on the side of her head, of which she afterwards died on the 15th. There is in the same count referring to the same occasion, language which, although indefinite, may perhaps have been designed to refer to more than one fatal injury; but she is alleged throughout to have died of "wounds." The testimony shows very clearly that, whoever may have been the cause of her death, she did not die of wounds on her head or elsewhere; and that the fatal injury was a blow or kick upon her abdomen, possibly aggravated by similar violence on her chest, which produced no wound, but led to gangrene of the intestines, which were already diseased, and from this followed rupture and hemorrhage that proved fatal. This indictment made no reference to the criminal agency of any one but Carr, who was charged with personally committing the deadly acts. Daisy Young, on whose uncorroborated testimony, contrary to the dying declarations of the decedent, the whole conviction rested,...