People v. Cleveland, 93.

• Decision Date: 07 October 1940
• Docket Number: No. 93.,93.
• Citation: 295 Mich. 139,294 N.W. 124
• Parties: PEOPLE v. CLEVELAND.
• Court: Michigan Supreme Court

295 Mich. 139

294 N.W. 124

PEOPLE

v.CLEVELAND.

No. 93.

Supreme Court of Michigan.

Oct. 7, 1940.

John Cleveland was convicted of rape, and he appeals.

Affirmed.Appeal from Recorder's Court of Detroit; Arthur E. Gordon, judge.

Argued before the Entire Bench.

Harold E. Bledsoe, of Detroit, for appellant.

Thomas Read, Atty. Gen., and Duncan C. McCrea, Pros. Atty., and John K. Graham, William L. Brunner, and Russell C. Duncan, Asst. Pros. Attys., all of Detroit, for the People.

CHANDLER, Justice.

Appellant was convicted of the crime of rape and at the trial claimed that he was not present at the time and place the offense alleged occurred. On appeal, he seeks a new trial, one of the grounds therefor being that the verdict was contrary to the great weight of the evidence. The record is sordid and it would be of no consequence to relate the details exposed therein. A careful review thereof shows that the testimony was in conflict as to whether defendant was innocent or guilty of the crime. The verdict was not contrary to the great weight of the testimony and it is not the province of this court to substitute our judgment for that of the jury on disputed questions of fact.

During examination of appellant by his counsel, the following occurred:

‘Q. Now, do you remember being on six months probation for assault and battery, that is, a fight? A. Yes, sir, I was on probation.

‘Q. There was a fight in 1930? A. I don't know just what year it was.

‘Q. Well, that is the time,-the first conviction he is talking about? A. I know I was on probation. I don't know what year it was.

‘Mr. Graham: I will object to counsel's stating that it was fighting, because it is just as obvious that it might have been assault on a child, or something of that nature. It runs into one phase of such crimes.

‘Mr. Pettiford: Your Nonor please, this prosecuting officer is trying to inject in something prejudicial to this defendant.

‘Mr. Graham: I object to that and ask him to be remanded if he continues, for the simple reason, here is assault and battery, and I asked him about it, I said,--

‘The Court: Well, he might have been fighting, but we are not going to try that case. We need not go further with it. The charge apparently in the record was assault and battery. We are not going to try that case.’

Appellant contends that the reference of the prosecuting attorney to an ‘assault on a child’ was prejudicial, and that the court was in error in permitting the statement. We believe any existing prejudice to have been removed by the following instruction to the jury which was immediately given by the court.

‘The Court: * * * We are not here to try the question of whether he was convicted of fighting with a man my size, or whether with a child, or anyone else, and any comment by either attorney is to be disregarded by you. It has nothing to do with the case. The only question is whether or not he was convicted on a certain day of assault and battery, and that is not proof of any offense of which he was charged. It is merely permitted in here as a measure of credibility, to help you to determine how much you believe of the witness' story. That is all, and these side remarks by the attorneys and explanations or innuendo, are not to be regarded as proof of any kind. You can disregard it.’

During the cross-examination of Mr. Baker, one of appellant's witnesses, the following occurred:

‘Q. That is all. Did he tell you what you would receive in compensation? A. I am off the stand now.

‘Q. Get back on the stand,...