People v. Clarke, 102

• Decision Date: 19 March 1962
• Docket Number: No. 102,102
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. John CLARKE, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 338

114 N.W.2d 338

366 Mich. 209

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. John CLARKE, Defendant and Appellant.

No. 102.

Supreme Court of Michigan.

March 19, 1962.

Norman P. Silverstein, Detroit, for defendant and appellant.

Richard J. Schonk, Port Huron, for the People and appellee.

Before the Entire Bench, except BLACK and ADAMS, JJ.

KAVANAGH, Justice.

Defendant was convicted by a jury in the circuit court for the county of St. Clair on September 2, 1959, of taking indecent liberties with a minor child. The child involved was an 11-year old girl who had lived with defendant and his wife since shortly after birth. The complaint upon which the warrant for defendant's arrest was issued was signed by his wife.

At the trial the wife admitted she was not the mother of the child. She testified she did not know if her husband had legally adopted the child and that 'he (the defendant) is to supposed to be the father of it (the child).' Defendant denied he was the father of the child. The only other evidence offered to establish that defendant was the child's father was the testimony of 2 police officers, who testified defendant advised them the child was his. Defendant admitted he had made the statement on several occasions that 'the child is mine' to prevent legal trouble.

Following the conviction, defendant made a motion to set aside his conviction and for his discharge. The reasons given for the motion were:

1) The complaint on which the warrant was based was signed by defendant's wife, Vera Murial Clarke, contrary to the statute, C.L.1948, § 617.67 (Stat.Ann.1959 Cum.Supp. § 27.916). ¹ The alleged crime was not against the wife nor a personal wrong to her nor was it a crime against the child of either or both of the parties.

2) The defendant's wife was not only permitted to be called as a witness and examined but also to testify against defendant without his consent, contrary to the same statute.

3) The child, whose legal name is Margaret Loretta Miraldi Hill, is the daughter of defendant's wife's sister. She is the natural offspring of one George Randolph Hill and Bernice M. Miraldi Hill, lawfully married persons, as shown by the child's certificate of birth. (Attached to the motion was a certified copy of the child's birth record from the Michigan Department of Health.)

4) The court erred in permitting testimony accusing defendant of being the father of the child when said child was born of 2 other persons who were lawfully and legally married to each other at the time of said birth.

The answer of the prosecuting attorney to defendant's motion merely stated that defendant and his wife had raised the minor child from infancy and that it was an accepted fact in their community of residence that they raised the child as their own; that defendant and his wife permitted the child to be known by the name of 'Clarke'; and that no objection was made during the trial with reference to the wife's testimony in this matter.

The court entered an order denying the motion without opinion.

Defendant appeals raising these questions:

1. Can a wife sign a complaint and testify against her husband at the trial, without his consent, in prosecution for a crime committed against a child which was not a child of either or both of the parties?

2. Was testimony that defendant could be the father of said child improper, prejudicial, irrelevant, and wholly extraneous, inasmuch as said child was born during the lawful wedlock of 2 other people?

3. Should the court consider manifest and serious errors, although objections to same were not properly and timely presented to the court below?

The prosecutor raised a counter-statement of defendant's first question, formulating it as follows:

'Can a wife sign a complaint and testify against her husband at the trial, without his consent, in prosecution for a crime committed against a child, if the question of the paternity of said child is in issue and defendant husband does not object to wife's testimony?'

There can be no question that the trial judge was fully informed with respect to the fact the child was not a child of either or both of the parties. The testimony of defendant and his wife clearly indicates defendant was not the father of the child.

This Court in numerous cases construing the statute before the 1939 amendment which added the language 'in cases of prosecution for a crime committed against the children of either or both' has held that a wife cannot sign the complaint nor testify against the husband without his consent. People v. Westbrook, 94 Mich. 629, 54 N.W. 486; People v. Trine, 164 Mich. 1, 129 N.W. 3; People v. Werner, 225 Mich. 18, 195 N.W. 697.

It is apparent that when the legislature amended the statute in 1939, it did so for the express purpose of permitting either spouse to sign a complaint and to render testimony against the other without his or her consent only where the action involves one or the other or a child of either or both of the parties. It is equally clear the legislature did not intend to change the law applicable to a case where the child involved does not belong to either or both of the parties.

It is clear that a duty devolved upon the prosecutor, and particularly upon the trial judge, on discovery that the child was not a child of either or both of the parties, to have the complaint dismissed. The only question that could arise would be whether the...