People v. Cavanaugh

• Decision Date: 03 June 1929
• Docket Number: No. 148.,148.
• Citation: 246 Mich. 680,225 N.W. 501
• Parties: PEOPLE v. CAVANAUGH.
• Court: Michigan Supreme Court

246 Mich. 680

225 N.W. 501

PEOPLE

v.CAVANAUGH.

No. 148.

Supreme Court of Michigan.

June 3, 1929.

Error to Circuit Court, Genesee County; Fred W. Brennan, Judge.

Joseph Cavanaugh was convicted of rape, and he brings error. Reversed and remanded for new trial.

Argued before the Entire Bench, except POTTER, J.

Clark and Sharpp, JJ., dissenting.

Guy M. Wilson, of Flint, for appellant.

Wilber M. Burcker, Atty. Gen., and William R. Roberts, Pros. Atty., and Charles D. Beagle, Asst. Pros. Atty., both of Flint, for the People.

CLARK, J.

Defendant was convicted of rape of prosecutrix, a woman 49 years old, and he brings error.

During the argument the following:

‘Mr. Wilson: I object to the argument of the prosecuting attorney about what we are reading in the newspapers about this California case.

‘The Court: It is simply replying to what the General (defendant's counsel) himself said.

‘Mr. Wilson: I said nothing about a California case whatsoever. I want my objection on the record.

‘Mr. Stipes (prosecuting attorney): I say to you that he said, ‘People don't do things like this and then go and visit with little children.’ I say to you that you all know that just recently a man took a little girl eleven years old, when he liked her, and liking her he put a towel around her neck and choked the life out of her body. That is a case that comes within your recollection, and you can recall from your experience where a man has played with little children and done the most dastardly things.'

The argument of the prosecuting attorney is urged as reversible error, citing People v. Nixon, 243 Mich. 630, 220 N. W. 889. Nixon was convicted in Genesee county of taking indecent liberties with a 5 year old girl. The Hotelling Case had occurred in the county shortly before and was a matter of wide publicity, indignation, and excitement. Hotelling induced a 5 year old girl to ride with him, took her to a secluded spot, assaulted and murdered her, and horribly mutilated her body. The unprovoked argument of the prosecuting attorney in which he urged consideration of that crime in passing upon the charge against Nixon was held to be reversible error.

It is assumed in the case at bar that the prosecutor referred to the so-called Hickman Case [(Sup.) 268 P. 909] in California, which he stated was the murder of a girl 11 years old. In the Nixon Case and in the Hotelling Case the offense was against a 5 year old girl, and in the same county. There is no such similarity here. The Hickman Case was in a distant state, of passing interest here, merely another murder in the present crime tide. Here the crime is rape of a woman of mature years. Defendant's counsel had argued to the jury the evidence that his client that evening had gone to a home and visited with little children, and that one who so visited would not commit the crime charged. As stated by the trial judge, the remarks of the prosecutor were in reply to such argument. It was proper for the prosecutor to argue that men who have committed crimes have also associated with children, but he ought not to have mentioned the particular crime. But in view of the remoteness of the crime suggested and of the disimilarity in the offenses and in the facts and circumstances, we agree with the trial judge that the incident is not reversible error.

Defendant's counsel asked a witness: ‘Do you know Cavanaugh's general reputation as to his character in the community in which he lives?’ to which the prosecutor objected: ‘Not being put in the proper form.’ Sustaining the objection is assigned as error.

The same witness had testified just before being asked the above-quoted question: ‘I have known Cavanaugh for a long time. I know his reputation there in the community.’ The witness had already said that he knew defendant's reputation in the community in which he lived—that is in effect his general reputation. The witness was already qualified to testify of defendant's general good character with respect to the trait or traits here involved (People v. Albers, 137 Mich. 678, 100 N. W. 908; Gillett on Ind. & Col. Ev. 360; Underhill's Crime Ev. [3d Ed.] § 135), but he was not asked so to testify.

We do not see prejudice to defendant because of the ruling.

Prosecutrix testified: ‘I saw him disappearing in the dark—I got a glimpse of the outline of the back of his figure.’ In stating the claimed facts to the jury, the trial judge construed such testimony as follows: ‘And further on one occasion got a fleeting glance of the back of his head.’ On which error is assigned. Strictly speaking, the ‘back of his head’ is a part of ‘the back of his figure.’ We preceive no prejudice in this slight variance from the testimony.

Error is assigned on restricting cross-examination of a witness for the people, a police officer. He testified:

‘I remember when you (Mr. Wilson) asked to see him and we refused you permission to see him and you had started to the courthouse to get a writ of habeas corpus when I told you that you could see him.

‘Q. Did I have the papers prepared at that time? A. I could not say.

‘Q. Did I have the papers in my hand?’

At this point the court indicated that counsel had pursued the matter far enough. This mater is stressed as bearing upon the question of whether the confession was made voluntarily. Defendant testified fully in that regard as did a number of other witnesses. The question was submitted to the jury under instructions of which no complaint is made. Defendant preferred no requests to charge. Apart from the confession itself, defendant admitted his guilt to a police officer, which admission he did not deny. We think the incident not reversible error. There is evidence that at first police officers did deny to counsel access to accused but access was permitted, and there is no contention that there was not ample time and opportunity to prepare defense. It may be that conduct of police officers is here open to criticism, but the question is: Ought there to be reversal on that ground? We are not so persuaded. Some one raped the woman. At one time defendant admitted he did it. The jury found that he did. The record does not indicate miscarriage of justice. In these circumstances reversal is not required.

Other assignments briefed by counsel have been considered and call for no discussion.

Judgment affirmed.

SHARPE, J., concurred with CLARK, J.

WIEST, J.

For reversal.

I am not in accord with the opinion of Mr. Justice CLARK.

This young man was sentenced to prison for life upon identification of his voice by the victim of a rape and his alleged confession of guilt. Upon the trial he repudiated the confession and claimed it was extorted by duress, browbeating, intimidation, and holding him incommunicable. Defendant testified:

‘They (police) questioned me at night, would not let me sleep, then would stand outside my cell and say, ‘Why didn't you tell the truth,’ and then when I would try and tell them, they would call me a liar. * * * I asked to see my father and mother and Mgr. Dunnigan, my priest.

‘Q. What did they say in relation to that?

‘Mr. Stipes (Prosecutor): I object to the question for the reason that it is immaterial in this case. That would not be any reason to cause this confession to be anything but voluntary.

‘The Court: I sustain the objection.

‘I asked to see a lawyer and they said, ‘A lawyer would not do you any damn good.’'

The ruling was erroneous. The police had testified that the confession was voluntary. Defendant had an undoubted right to lay before the jury his full claim of what the police said to him, and it was for the jury to say whether, under all the circumstances, the confession was...