People v. Connor, 95.

• Decision Date: 07 October 1940
• Docket Number: No. 95.,95.
• Citation: 294 N.W. 74,295 Mich. 1
• Parties: PEOPLE v. CONNOR.
• Court: Michigan Supreme Court

295 Mich. 1

294 N.W. 74

PEOPLE

v.CONNOR.

No. 95.

Supreme Court of Michigan.

Oct. 7, 1940.

J. Lyle Connor was convicted of manslaughter, and he appeals.

Affirmed.Appeal from Circuit Court, Allegan County; Fred T. Miles, Judge.

Argued before the Entire Bench.

I. C. Montague, of Allegan, and Harry Howard, of Kalamazoo, for appellant.

Thomas Read, Atty. Gen., and Ervin L. Andrews, Pros. Atty., of Allegan, for the People.

McALLISTER, Justice.

While driving an automobile on highway M-118 in the city of Allegan, defendant struck and killed a pedestrian who was walking on the sidewalk. Defendant was arrested, tried for manslaughter, convicted, and sentenced to prison for a term of from two to 15 years.

It appears that on the day in question he had stopped at a tavern, where he had drunk some beer, and afterward drove to a nearby airport, where he took an airplane ride with a friend. On his return to Allegan over highway M-118, he lost control of his automobile which proceeded down a hill and over a six-inch curb at a high rate of speed, uprooted and broke off a tree eight inches in diameter, struck and killed the pedestrian on the sidewalk, and continued on through a wire fence, crashing into a large frame house, driving it four inches from its foundation and smashing the supports from the front porch, so that the roof fell onto the car.

On the trial, it was the theory of the prosecution that defendant was racing with a friend, Clare Yeager, who was driving another car; that shortly before the accident he was driving at a rate of between 70 and 90 miles an hour; and that he was intoxicated.

In his opening statement to the jury the prosecuting attorney stated that he would show that defendant was racing with Yeager at the time of the accident and that Yeager was at that time serving a sentence for such racing. Evidence was introduced to show the high rate of speed at which it was alleged defendant was driving, and a witness testified that as Yeager and the defendant went over the top of the hill, they were about even. Yeager was a witness who was endorsed upon the information and was called upon at the insistence of counsel for the defendant. In his examination by the prosecutor, Yeager was asked whether he had not been sentenced to jail for racing. In reply, he denied that he was racing and stated that he had pleaded guilty to reckless driving. It is the claim of the defendant that the prosecutor's opening statement that he would show Yeager was sentenced to jail for racing, when, as a matter of fact, he had pleaded guilty to reckless driving, resulted in prejudicial error. We are of the opinion that this contention is untenable. There was evidence that both the defendant and Yeager were engaged in racing; and while Yeager may have pleaded guilty to reckless driving, it would not prevent the prosecutor from showing that defendant and Yeager were actually engaged in a race before the accident; and such proof would bear upon the question of defendant's guilt.

The claim that it was improper for the prosecutor of attack the credibility of his own witness is likewise without merit. Yeager insisted that he was not racing, in the face of evidence by the prosecution that such was the case. He was not a witness voluntarily brought forth by the prosecutor. Because his name was endorsed on the information as a res gestae witness, it was necessary, upon defendant's insistence, to produce him before the jury; and the questions asked to show the actual facts with regard to the accident were proper. In his charge to the jury, the trial judge was assiduous in instructing them how they should consider Yeager's testimony; and made it explicit that Yeager's conviction had no bearing on the question of defendant's guilt of reckless driving.

Error is further claimed upon the court's comment that defendant ‘didn't claim he didn't know’ about the steepness of the hill and the curve in the road just before the accident. But defendant had previously travelled this same road in going out to the airport just before the accident, and we are unable to see any prejudice in the court's remark.

At the conclusion of the testimony the court permitted the jury to view the scene of the accident, and it is claimed that prejudicial error resulted because of the fact that the view by the jury was had in the absence of the defendant. It appears, however, the defendant, at the time of the trial, was at liberty on bail. There was nothing to prevent him from being present with the jury at the time of their view. In view of such circumstances, by his absence he must be deemed to have waived his right to accompany the jury, under the authority of People v. Auerbach, 176 Mich. 23, 141 N.W. 869, Ann.Cas.1915B, 557.

Furthermore, it is contended that the jury did more than merely view the scene of the accident; that an officer pointedout to them marks made by defendant's car across a lawn; that the jurors searched for and found the stump of the tree which was uprooted by defendant's car; and that they examined the fence and the house with which the automobile collided. Whatever may have been the result of the jury's having been permitted to view the scene of the accident, there appears no basis for any claim that it resulted in prejudice to defendant. There was no...