People v. Cleveland

• Decision Date: 10 December 1895
• Court: Michigan Supreme Court
• Parties: PEOPLE v. CLEVELAND.

65 N.W. 216

107 Mich. 367

PEOPLE v. CLEVELAND.

Supreme Court of Michigan

December 10, 1895

Error to circuit court, Hillsdale county; Victor H. Lane, Judge.

George Cleveland was convicted of assault with intent to murder, and brings error. Affirmed.

Fred A. Maynard, Atty. Gen., Guy M. Chester, Pros. Atty., and Fred M. Twiss, Asst. Pros. Atty., for the People.

Fellows & Chandler, for defendant in error.

LONG J.

The respondent was informed against, jointly with Robert Mehan and Frank Swedenski, for assault with intent to commit the crime of murder, and on a second trial was convicted, and sentenced to the state prison at Jackson for a term of eight years. He was tried separately. The people's proofs tended to show that the complaining witness, Eugene Weatherwax, was the keeper of a general store at Somerset Center, Hillsdale county and on July 18, 1894, after he had closed his store for the night, he was called from his living rooms, which adjoined the store, by a party who claimed he wanted to buy some crackers and cheese. Weatherwax came out with a kerosene lamp in his hand, opened the door of the store, went in, and started to raise the trapdoor leading to the cellar, where his cheese was kept. While stooping over for this purpose, he was called to throw up his hands. He turned around and saw two men, one of whom wore a white mask. He still held the lamp in his right hand, and at once attacked the man nearest him with it, striking him over the head, and extinguishing the light. Two shots were fired at him by the two men, each of which took effect, one in his leg, and the other in his body. He continued grappling with the man, striking him with what remained of the lamp, the man all the time working towards the door, trying to get away. This he finally succeeded in doing, and escaped in the darkness. The proofs also tended to show that Mehan was the party with whom the witness Weatherwax had the struggle, and that defendant Cleveland was the party in the store with him, and both of whom shot and wounded him; that another party, who, it is claimed, was Swedenski, was either at the store door, or in that vicinity, stationed as a lookout. The next morning after the affray, Mehan was traced from within two miles of the place to the city of Jackson, and was subsequently identified as the person who attacked Weatherwax. It was claimed, also that Cleveland was identified as the masked man in the store who fired one of the shots at Weatherwax. The people's testimony tended further to show that, on the afternoon prior to the assault, Swedenski engaged a horse and carriage at Jackson, claiming that he wanted to drive into the country some distance; that Mehan was seen with him in the carriage in Jackson; and that subsequently Cleveland joined them before leaving the city. The three parties were identified by several persons along the way. While they were driving in the direction of Somerset Center, some parties saw them, but a short distance from there. About 1 o'clock the next morning, defendant Cleveland returned the horse to the livery stable. The theory of the prosecution was that Cleveland and Swedenski returned to Jackson with the carriage, leaving Mehan to find his way there on foot, as he was seen the next morning within two miles of Somerset Center, going in the direction of Jackson; he at that time being without a hat, and having cut out the pocket of his coat, and drawn it over his head, as a skullcap. The three parties were arrested, bound over, and at the September term, 1894, of Hillsdale county the case was set for trial. The night before the term commenced the prisoners broke jail and escaped. In the latter part of December of the same year, respondent, Cleveland, was brought back from New Orleans, La., and placed upon his trial at the January term. Upon the trial the defense was that the people were mistaken in the identity of respondent, Cleveland, and he sought to establish an alibi. His counsel contends that the court was in error (1) in permitting the people to show the acts of Mehan after the affray, his appearance on the way to Jackson and on the succeeding days, the excuse he gave for his then condition, and the result of an examination of his clothing; (2) in allowing the escape of all the defendants from the jail to be shown; (3) in not giving certain requests to charge; (4) in certain portions of his charge to the jury; (5) in not permitting the respondent to show that he surrendered voluntarily after his escape from jail.

1. It is apparent from the testimony that the three parties, when they left Jackson, had arranged to engage in this robbery. We think there was evidence for the jury to determine the identity of the three on their way there, and there can be little question from the testimony that they were at the store; two of them entering it, and one remaining outside. Mr. Weatherwax testified that he recognized respondent Cleveland, as the masked man, and who fired one of the shots. By the proofs it was established that a prior arrangement had been made to commit the robbery, and the arrangement had been carried out so far as they were able to do so. It was therefore proper to show the condition of Mehan, who was not on trial, for the purpose of establishing his identity as one...