People v. Cherry
Decision Date | 24 December 1974 |
Docket Number | No. 55206,55206 |
Citation | 224 N.W.2d 286,393 Mich. 261 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick E. CHERRY, Defendant-Appellant. 393 Mich. 261, 224 N.W.2d 286 |
Court | Michigan Supreme Court |
Before the Entire Bench.
On order of the Court, defendant's conviction is peremptorily reversed and a new trial ordered on the ground that defendant sought to have the court exercise its discretion to exclude prior conviction evidence, and it is apparent that the court failed to recognize that it had such discretion and failed to exercise it. See People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion.
Defendant was convicted of breaking and entering with intent to commit larceny and rape. When the Prosecutor sought to cross-examine defendant about a prior rape conviction, defense counsel objected and an argument commenced. The trial judge cut off the argument, however, saying, 'You cite the cases and that's enough.' Defense counsel did cite various cases regarding the admissibility of evidence of other offenses not prior convictions. Later the court overruled the objection.
This Court finds that the judge failed to exercise his discretion in allowing the testimony. True, the trial judge did not specifically say that he was exercising his discretion. We doubt that many judges would say in effect, 'I have exercised my ...
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