People v. Clark, 77

• Citation: 340 Mich. 411,65 N.W.2d 717
• Decision Date: 08 September 1954
• Docket Number: No. 77,77
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. George CLARK, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 717

65 N.W.2d 717

340 Mich. 411

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. George CLARK, Defendant and Appellant.

No. 77.

Supreme Court of Michigan.

Sept. 8, 1954.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Gerald K. O'Brien, Pros. Atty. for Wayne County, Ralph Garber, Chief Asst. Pros. Atty., Samuel Brezner, Chief Criminal Appeals Division, Samuel J. Torina, Asst. Pros. Atty., Detroit, for the People.

Joseph A. Sullivan, Asst. Pros. Atty., Detroit, for the People.

Harry Robert Bockoff, Detroit, for defendant and appellant.

Before the Entire Bench.

CARR, Justice.

Appellant and 10 others were tried before a jury in the recorder's court in the city of Detroit and convicted. The information in the case alleged, in 12 counts, that the defendants had conspired together, and with others, to violate the statutes of the State relating to the suppression of gambling. The jury returned a verdict of guilty on all counts. Defendant Clark's motion for a new trial was denied, and, on leave granted, he has appealed claiming that errors committed in the course of the trial were sufficiently prejudicial to require the setting aside of the conviction and sentence and the granting of a new trial.

Defendant called as a witness in his behalf one Joseph Lis who had been arrested with the defendants, and others, and subsequently released. Lis was questioned concerning his conversation with an officer of the police department of the city of Detroit and as to the manner in which he was treated by the police. Apparently counsel for defendant Clark sought to show that the witness had been abused in some way, verbally or physically, or perhaps both, in order to raise an inference that defendant had been treated in like manner to obtain admissions from him. On objection the testimony was excluded. It does not appear from the record that appellant was present at the time Lis was interrogated by the police. The proof offered and rejected did not have reference to any coercion or intimidation exercised by police officers toward defendant, if there was such. Appellant did not testify on the trial in his own behalf, and hence there is no basis for any possible theory that the testimony of Lis, had it been admitted, would have tended to corroborate testimony of the defendant. The trial court was correct in sustaining the objection.

In the course of his charge to the jury the trial judge referred to the information, indicating the general nature of the various counts. He further stated that he would not read the information in full but would give the jury two or three copies thereof. This was done at the conclusion of the charge, and the jury permitted to take three copies of the information to the jury room. On behalf of appellant it is claimed that this constituted prejudicial error, and that the court further erred in not specifically charging the jury that the information could not be considered as evidence against defendants. No request, oral or otherwise, for such a charge was made, not does the record indicate that counsel for defendant Clark objected to the action of the court in permitting the jurors to receive, for their examination in arriving at a verdict, that copies in question. Such procedure was not an abuse of discretion.

Obviously, even if the judge in his charge had read the entire information, it would have been an impossibility for the jurors to have kept in mind all the provisions of each count. Undoubtedly the members of the jury understood the purpose for which they were supplied with the copies. It may be assumed that they understood that the information was merely a statement of the formal charge, and that it was necessary for them to consider the different counts in determining the guilt or innocence of the defendants thereunder. It is scarcely conceivable that any juror considered the copies furnished as evidence of defendants' guilt. The omission to charge specifically with reference to the matter, particularly in the absence of a request therefor, did not constitute error.

Complaint is also made on behalf of appellant because the trial judge in submitting the case to the jury did not explaint the force and effect to be given to circumstantial evidence. It is contended that the prosecution's case rested largely on the basis of proofs of such character. On behalf of the people such contention is disputed. The testimony taken on the trial is, in the main, rather briefly summarized in the record, and in consequence it is impossible to make a definite determination as to the conflicting claims of the parties. However, it is a fair conclusion that material testimony not circumstantial in character was introduced for the purpose of showing the guilt of the defendants. In any event appellant is not in position here to claim that the omission to give the usual circumstantial evidence charge constituted prejudicial error as to him for the reason that no request therefor was presented to the court. C.L.1948, § 768.29, Stat.Ann. § 28.1052, provides in part as follows:

'The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.'

It was held in People v. MacPherson, 323 Mich. 438, 35 N.W.2d 376, that is is the duty of a trial judge in submitting a criminal case to a jury to define the elements of the offense with which the defendant is charged, and that the failure to make reference to an essential element renders the charge as given erroneous. The case at bar, however, does not fall within the rule recognized in the MacPherson Case and in other decisions of like nature. It was not the duty of the trial judge to charge specifically with reference to the weight to be given to circumstantial evidence in the absence of a reqest therefore. Whether such a charge, if requested, should have been given does not require consideration.

Other alleged errors relate to the instructions given by the trial court to the jury. It appears that affter the jury was empaneled and sworn to try the case the trial judge made certain remarks intended to enlighten the jurors, some of whom, it appears, had not previously served in that capacity, with reference to criminal procedure. In the course of such remarks he said 'And so, as in other cases, and in this case as well, there is bound to be a prima facie case or you would not be allowed to consider it.' On behalf of appellant it is claimed that the jurors, or some of them, might have construed this statement as meaning, in substance, that there was a prima facie case against the defendants and that if such were not the situation there would be no trial. On behalf of appellee it is argued that the statement quoted may not be given the interpretation suggested, and that what the trial judge actually meant was that there must have been a finding on preliminary examination that the crime charged had been committed, and that there was probable cause to believe that the defendants had in fact committed it. (See C.L.1948, § 766.13, Stat.Ann. § 28.931). It may not be said, however, that members of the jury could not have interpreted the statement in accordance with appellant's contentions, or that they did not do so. It is quite conceivable that a juror having in mind the commonly accepted meaning of the expression 'prima facie case' might have construed the judge's remark as meaning that at the outset of the case there was an inference that ...