People v. Cole

• Decision Date: 31 July 1957
• Docket Number: No. 82,82
• Citation: 349 Mich. 175,84 N.W.2d 711
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. John COLE, Jr., Defendant and Appellant.
• Court: Michigan Supreme Court

Page 711

84 N.W.2d 711

349 Mich. 175

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

No. 82.

Supreme Court of Michigan.

July 31, 1957.

Meyer W. Leib, Marvin W. Reider, Detroit, for respondent-appellant.

Thomas M. Kavanagh, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Gerald K. O'Brien, Pros. Atty., Ralph Garber, Chief Asst. Pros. Atty., Samuel Brezner, Chief Appellate Lawyer, Samuel J. Torina, Asst. Pros. Atty., Detroit, for the People.

Before the Entire Bench, except KELLY, J.

EDWARDS, Justice.

My Brother has recited the relevant facts and with his conclusions on the issues presented by the appellant the writer concurs in all respects except the last. Dealing with this issue, Mr. Justice CARR says as follows:

'Appellant further complains that the trial judge displayed a prejudiced attitude toward the defense in the case, and that the verdict of the jury may have been affected thereby. The claim is based in the main on colloquies between defendants' counsel and the judge, which in certain instances were somewhat extended and argumentative. Not all of such colloquies occurred in the presence of the jury, but some did so occur, and perhaps indicated a measure of irritation on the part of both counsel and judge. The trial consumed approximately 15 days. Counsel for defendants was persistent in stating objections to rulings by the court, and a situation developed analogous in certain respects to that discussed by the Court in People v. O'Hara, 278 Mich. 281, 306, 270 N.W. 298. The test to be applied is whether what occurred prevented the appellant here from having a fair and impartial trial.'

After a careful review of this record, the writer is persuaded that the trial judge did exhibit an unwarranted partiality toward the prosecution and that certain aspects of his conduct toward defendant and defendant's witnesses and counsel may well have influenced the jury in its verdict. This record contains 16 printed pages of close and sometimes heated cross-examination by the trial judge of the defendant and the defendant's principal witness. It does not disclose any similar judicial cross-examination of the prosecution witnesses. A relevant portion of the court's cross-examination of the defendant himself follows:

'A. * * * I don't know when the charter was obtained for the corporation from the State of California; you would have to find that out from my brother.

'The Court: Wait a minute, Mr. Prosecutor. If he has records, make him produce them. He is a witness on the stand. He can't say ask his brother. A. I don't have any, sir, on that.

'The Court: Well, are they here in court? A. No, sir, I don't have anything pertaining to that.

'The Court: Where are they? A. They could be in California.

* * *

* * *

'The driver in the Arcadia area was a fellow named Blackwood. He serviced this area for a period of 3 to 4 months prior to February of 1952. The party who underwent brain surgery was a man named Denewith. He had a contract signed by the corporation. It was a form contract that we were using at the time. I do not have the contract with me.

'The Court: Where is it? A. It would be in our files in California. If I had known you wanted this----

'The Court (interrupting): You knew this case was coming up, didn't you? A. Yes.

'The Court: You knew you were going to take the stand; you conferred with your attorney? A. Yes, but if I knew they would ask all these questions----

'The Court (interrupting): The Court is asking a question.

'Mr. Leib [Defendant's attorney]: May I interrupt?

'The Court: I am asking a question.

'Mr. Leib: No, but I object to the question by the Court.

'The Court: I am asking the witness a question. Please be seated.

'Mr. Leib: Thank you, your Honor.

'The Court: You knew you were coming down there to testify, didn't you? A. Yes, sir.

'The Court: Do you have the records here? Can you get the records by tomorrow morning? A. I don't think we could get them in that soon.

'The Court: Where are the records? A. Well, they are in our office in Long Beach. You would have to get an okay from the fellow that is handling it. He would have to get an okay to take them out, and then they would have to be air-mailed back. We do have a record of the accounts of the area. If we had known you had wanted them we would have brought them back.

'The Court: The Court wants nothing. The Court is asking these questions and wants to know whether you have them. A. We do have them.'

A similar cross-examination by the trial judge with a bit of a reverse twist took place in relation to the testimony of defendant's brother and principal defense witness 'A. Certain demonstrations were held in May's territory in various markets. I have a list of those markets where the demonstrations were made. The----

'The Court (interrupting): Well, where are your records that you made that record from? A. They are all in the Bankrupt Referee office in Los Angeles.

'The Court: When did you make that particular reference? A. Back in September.

'The Court: Back in September? A. Yes.

'The Court: Back in September? When did you come to Detroit, now? A. I have been here 3 times in the last 2 1/2 months.

'The Court: When was the last time you came here? A. I was here about a month ago.

'The Court: Well, you came here for this trial, did you not, as a witness? A. That is right.

'The Court: Did you bring any records with you? A. I brought records every time I came.

'The Court: What records do you have here now? A. Everything I have I have turned over to Mr. Leib.

'The Court: What are they? A. Relative to advertising, demonstrations, the contracts, anything that pertains to Mr. Depencier, Mr. May, Mr Woods, Mr. Secrist or Mr. Miles.

'The Court: How is it the receiver doesn't have those particular papers? A. Well, because, after all, I was informed way back in September, September or October, that this trial was coming up.

'The Court: Well, did you withhold these particular records from the receiver? A. We were not in bankruptcy at that time. We didn't go into bankruptcy----

'The Court (interrupting): That isn't what I asked you. You say the receiver has certain records now, is that correct? A. That is correct.

'The Court: And you have certain records now? A. That is right.

'The Court: Did you withhold these records from the receiver in the bankruptcy court? A. They were withheld before we were in bankruptcy.

'The Court: They were withheld before you were in bankruptcy, before you went into bankruptcy? Well, the records were turned over after a receiver was appointed? A. No, the records were turned over to Mr. Leib before we were in bankruptcy.

'The Court: Do you mean the records were turned over to Mr. Leib before you went into bankruptcy? A. That is right.

'The Court: When did you go into bankruptcy? A. November the 6th, 1953.

'The Court: November the 6th, 1953? Well, this warrant was issued October 2nd, 1953? A. Well, in the--October the 2nd?

'The Court: Yes. A. Pardon me? Well, we weren't in bankruptcy then. I still had access to all the files.

'The Court: Well, you haven't turned over the accounts and all the records pertaining to the situation, have you? A. These accounts were----

'The Court (interrupting): No, wait, just answer my question. A. Pardon me?

'The Court: Have you turned over all of the accounts; I mean the accounts of the area and the entire transactions between Mr. May, Mr. Depencier, and the other people here involved?

A. Have I turned them over to whom?

'The Court: To Mr. Leib? A. Yes.

'The Court: He has all the records? A. Certain records in regard to Mr. May and Depencier.

'The Court: All right. The Court will rule on that in the absence of the jury a little later on. Go ahead.

'Mr. Leib: Thank you.

'Q. (By Mr. Leib, continuing): Now, then, Mr. Cole, do you have an independent recollection of the number of stops or demonstrations that were put on for Mr. May? A. 16.

'Q. 16 stops?

'The Court: Wait a minute, now. Did you use these records to refresh your memory before you took the stand? A. No, I have known this for some time. I have known this for--ever since Mr. May was active in the territory. I know everything that goes on in that business out there. I know practically every account. I made a study of it. I run the business 7 years, almost, myself.

'The Court: My question was did you use any of these records to refresh your memory at the present time? A. No, I know----

'The Court (interrupting): You can answer it yes or no. What is difficult about the question? Did you use any of the records to refresh your memory? A. No.

'The Court: All right go ahead. A. 16 demonstrations were run in Mr. May's territory.

'Q. All right. Now, do you know where those demonstrations were held? A. Yes, sir.

'Q. Where were they held?

'The Court: No, don't use any notes to refresh your memory unless you know. If you do the prosecutor is entitled to have the other records. A. There was the Reece Market, there was 2 Taylor's Markets, there was the El Rancho Market, there was the Box Market, Better Food Market, Ralph's Market, 2 Market Baskets. How many does that make?

'Q. Ask the court reporter. For the purpose of refreshing your recollection, Mr. Cole, was a demonstration held at the Gold Stripe Market? A. Yes, sir.

'Q. Was a demonstration held at the Dude Ranch Market? A. In Pomona, Yes.

'Q. Was a demonstration held at the Ewing and Green Market? A. Yes, sir.

'Q. Was a demonstration held at the Moody Market? A. Yes, sir.

'Q. Was a demonstration held at the Wonder Market? A. Yes, sir.

'Q. Was a demonstration held at Ralph's Market? A. Well----

'The Court (interrupting): Well, aren't they leading, Mr. Prosecutor?

'Mr. Kotelly [Prosecuting Attorney]: Yes, your Honor.

'The Court: I will sustain the objection.

'The Witness: Ralph's Market----

'The Court (interrupting): Wait a minute. I have ruled on it, Mr....