People v. Considine
| Decision Date | 30 April 1895 |
| Citation | 105 Mich. 149,63 N.W. 196 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. CONSIDINE. |
Error to recorder's court of Detroit; William W. Chapin, Judge.
Appeal by William Considine from a conviction of knowingly receiving and aiding in the concealment of stolen goods. Affirmed.
After having called the attention of a witness for the people to his evidence on a former trial, and having asked him if he made certain statements, the defense sought to impeach him by having read the stenographer's minutes of the former trial, but the stenographer was not asked the same question as the witness sought to be impeached. Held, the evidence was properly excluded.
Edwin Henderson and Alfred J. Murphy (James H Pound, of counsel), for plaintiff in error.
Allan H. Frazer and Ormond F. Hunt, for the People.
Respondent was convicted of receiving and aiding in the concealment of 80 bolts of cloth, knowing the same to have been stolen from one Julius W. Esser. The evidence tended to show that respondent went with one Wirth and one Hahn to the boathouse of one Duff Fecteau, at Grosse Pointe, on the 8th or 9th of December, 1893, and that the stolen goods were there obtained, taken into a one-horse wagon, and removed to Wirth's place, on Atwater street; that subsequently the goods were taken to the tailor shop of one Hoetger, and there sold, and that a check was given to respondent by Hoetger in payment for the goods; that respondent was arrested directly in front of Hoetger's store, and that he immediately threw a piece of paper into his mouth, which he refused to give up until it was so chewed that it could not be identified. Respondent admitted that he was present on the occasions, but his testimony differs from other witnesses in some details as to what was said and done, and he claims to have been acting without any knowledge that the goods were stolen, and without any connection with the transactions relating to their concealment or sale.
Complaint is made that the trial judge refused to grant a continuance of the case to enable respondent to obtain counsel. We have examined the record with care, and are satisfied that there was no such abuse of discretion on the part of the trial judge as would justify us in reversing the case upon this ground. Respondent was represented on the trial by two counsel, and while his counsel insisted that the attorney originally employed in the case, Col. Atkinson, would have been better prepared to try it, the record affords indication that it became a question as to whether Col. Atkinson would postpone the present case or another case in which he was at the time engaged. Some discretion must be allowed a trial judge in arranging and disposing of cases, if courts are to be run with any regard whatever for economy, and we are not prepared to say that there was any abuse of such discretion in the present case.
On the day preceding the trial, the circuit judge made an order for the summoning of 30 extra jurors, under the provisions of act 204 of the Laws of 1893. The jurors were publicly drawn. After the drawing, an order was made that the names of the jurors so drawn should not be given to the public or to the counsel for the prosecution or defense. On the morning of the trial, Judge Gartner, who had assisted in a former trial of the case, appeared, and noted an exception to the entry of the two orders for drawing the extra jurors, and the order suppressing the names of the jurors. Following upon this the following proceedings took place: The venire was produced, and handed by the clerk to Judge Gartner. "Mr. Frazer: Counsel for defendant insisted that they had a right to ascertain "whether these names are the names in the jury box or not," and asked that the clerk furnish a list of the names, to which the court replied that counsel would have to be satisfied with the return, counsel stating:
These proceedings were followed by an application for a continuance, which was denied, and the impaneling of the jury proceeded, the clerk proceeding to call first from the regular panel of jurymen, and, after that panel was exhausted, called jurymen from among the names drawn from the box on the previous day. The statute contemplates that the drawing of jurors shall be public, and that after the names are drawn the minute of the drawing shall be signed by the commissioners and attending officers, and filed in the clerk's office, when it is made the duty of the clerk to make out a venire facias directed to the sheriff, directing him to summon persons named to appear and act as jurors. The practice pursued in this case of suppressing the names of jurors cannot be commended. It seems to have been adopted in the fear that, if the knowledge of the names of the jurors was furnished, there would be opportunity for tampering with the jury. But, in our view, the trial judge was too apprehensive. We need not determine whether respondent's counsel have pursued the correct practice, or whether the error is such as to call for a reversal of the case, as we are of the opinion that the judgment must be reversed on other grounds, but the question is of too much importance to pass unnoticed. A person accused of crime is entitled to a fair opportunity to ascertain the antecedents and predilections of those to whom his fate is to be committed, and this right may be as important to him as the right to be confronted with the witnesses against him. The claim is made that there was no written application for the order directing the drawing of additional jurors, but we think this was unnecessary. It is made the duty of the judge, by the statute in question, to order additional jurors when enough are not present, and this he can do on his own motion. The fact that his attention has been called to it by the prosecuting attorney, either verbally or otherwise, would certainly not nullify his action.
Exception was taken to permitting one Charles Kulling to act as juror, for the reason that he was not a citizen. This question is ruled by People v. Scott, 56 Mich. 154, 22 N.W. 274; People v. Rosevear, 56 Mich. 158, 22 N.W. 276. See, also, No. 204, Laws 1893, � 5, which provides that jurors shall "have the qualifications of electors in the town or ward in which they reside and for which they are returned by said board." The juror in question was an elector, though not a full citizen.
Exception was taken to the court directing the jury to remain in the custody of the officer during the trial, and to the ruling of the court permitting one of the witnesses of the prosecution to remain in court during the trial. Both rulings were clearly within the discretion of the court. As to the latter, see People v. Machen (Mich.) 59 N.W. 664.
On the trial a witness who took part in the removal of the goods to Water street was called, and upon cross-examination he was asked: "Do you know that you are liable for what you did that night,-criminally liable?" This was objected to as immaterial, and the objection was sustained. While this question might properly have been allowed to be answered, we think it cannot be said that the respondent was prejudiced in view of all the testimony of the witness. He had already testified, on cross-examination, that, at the time of the conversation with the detectives, he did not know whether he would be arrested or not; that no promise had been made him then or since; that he did not expect any leniency from the prosecuting attorney for his testimony in the case; and further stated, after the objection above quoted: This testimony so fully covered the question of the witness' knowledge of the responsibility for his acts that the exclusion of the particular question quoted is immaterial. As before stated, the testimony of the people tended to show that respondent, on the occasion of the arrest, threw a piece of paper into his mouth, and chewed it beyond recognition. The prosecution were permitted to...
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