People v. Counts, 72.

• Decision Date: 16 May 1947
• Docket Number: No. 72.,72.
• Citation: 318 Mich. 45,27 N.W.2d 338
• Parties: PEOPLE v. COUNTS.
• Court: Michigan Supreme Court

318 Mich. 45

27 N.W.2d 338

PEOPLE

v.COUNTS.

No. 72.

Supreme Court of Michigan.

May 16, 1947.

Appeal from Circuit Court, Lenawee County; G. Arthur Rathbun, judge.

Arthur Counts was convicted of felonious assault, and he appeals.

Conviction and sentence affirmed.

Before the Entire Bench.

James H. Baker, of Adrian, for defendant and appellant.

Eugene F. Black, Atty. Gen., and Rex B. Martin, Pros. Atty., and Paul T. Betz, Asst. Pros. Atty., both of Adrian, for the People.

CARR, Chief Justice.

Defendant was tried in circuit court on an information charging assault with intent to do great bodily harm less than the crime of murder, in violation of Act No. 328, Pub.Acts 1931, § 84, Comp.Laws Supp. 1940, § 17115-84, Stat.Ann.1946 Supp., § 28.279. Said information alleged that the assault was made by means of a dangerous weapon, to-wit, a 12 gauge shotgun, the same being loaded and cocked. The jury returned a verdict of the included offense of felonious assault and defendant was sentenced accordingly. He has appealed, alleging that errors occurred in the course of the trial that require a reversal of the conviction and the setting aside of the sentence.

One of the police officers who arrested defendant testified, over objection by defendant's counsel, that following the arrest he smelled liquor on defendant's breath. It is argued by counsel for defendant that, inasmuch as defendant was not charged with being drunk or disorderly, the testimony in question was not competent and tended to bring into the case an irrelevant and incompetent issue. With this contention we are unable to agree. The offense charged in the information, as well as the lesser and included offense of which defendant was convicted, involved a specific intent as an essential element. Presumably the testimony indicating that defendant had been drinking was offered for such bearing as it might legitimately have on defendant's mental condition, and on the reason or reasons for his conduct as disclosed by the testimony of the various witnesses in the case. The testimony was admissible for the purpose indicated. The general rule is stated in 22 C.J.S., Criminal Law, § 621, p. 947, as follows:

‘Where the existence of a particular purpose, motive, or intent is a necessary element of the crime charged, evidence of intoxication is relevant and admissible to assist the jury in determining accused's purpose, motive or intent, or in fixing the degree of the crime, * * *.’

Likewise, in 20 Am.Jur., p. 317, it is said:

‘All evidentiary circumstances which are relative to, or tend to shed light on, the motive or intent of the defendant or which tend fairly to explain his actions are admissiblein evidence against him, although they may have occurred previous to the commission of the offense.’

In offering the testimony the prosecuting attorney disclaimed any attempt to show that defendant was actually drunk at the time of the alleged assault. It was obviously the people's theory, however, that defendant's conduct was not that of a wholly normal individual but was of such character as to indicate that defendant was mentally disturbed and irritable. Testimony of the character in question was proper to assist the jury in determining what offense, if any, defendant had committed. Thus, in People v. Droste, 160 Mich. 66, 125 N.W. 87 testimony was introduced indicating that defendant had been drinking prior to the commission of the homicide for which he was tried. The information in the case charged the crime of murder. The trial court, in charging the jury, submitted also the included offense of manslaughter, of which crime defendant was convicted. In holding that the trial court was warranted in submitting the case on the theory of manslaughter, as well as that of murder, this court made reference to the matter of defendant's possible intoxication, indicating that the jury might, under the proofs, have properly determined that defendant's mental condition was such as to render him guilty of the lesser offense. It is quite possible that in the case at bar the jury was influenced by a similar consideration in convicting defendant of felonious assault rather than the more serious crime with which he was charged in the information.

In People v. Sehorn, 116 Cal. 503, 48 P. 495, the defendant, charged with the crime of murder, was convicted of manslaughter. It was there held that testimony of a witness that defendant's appearance indicated he had been drinking was properly admitted, the court citing prior decisions in support of its conclusion. There was no error in the case at bar in the ruling of the trial court admitting the testimony tending to show that defendant had been drinking prior to the alleged assault.

Error is also alleged because the prosecuting attorney, in cross-examining the defendant, brought out that defendant came from Tennessee, that the possession of firearms was customary in that State, and that as a child defendant has a gun. As before noted, the information filed against defendant alleged that the assault was committed with a shotgun. It may be assumed the questions of the prosecutor were intended to show that defendant had some familiarity with the weapon which, according to his own testimony, he had in his hands at the time of the alleged offense. It is suggested by counsel for defendant that bringing out that defendant was from Tennessee naturally had a tendency to prejudice the jury. There is nothing in the record, however, to support any such suggestion. Moreover, no objection was made to the questions of the prosecutor with reference to the matter. As suggested we do not think that such an objection would have been well founded. In any event, failure to make it precludes the raising of the question on appeal. It is a general rule that failure to raise a question in the trial court precludes consideration of such question by an appellate court. People v. Stimer, 248 Mich. 272, 226 N.W. 899, 67 A.L.R. 552;People v. May, 199 Mich. 574, 165 N.W. 832. In 23 C.J.S., Criminal Law, § 1078, p. 512, et seq., it is said:

‘Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable, or to move to strike it out after its admission, giving a reason for the motion to strike out such evidence or to request or ask for an instruction as to its effect, or failure to insist on and obtain a ruling on an objection made, generally constitutesia waiver of the right to object and cures the error, if any, * * *.’

The people offered as a witness Dr. Frank Broadwater, who testified that on the night of the commission of the alleged offense, while seeking to locate a certain number on the street where defendant lived, he went, by mistake, to defendant's house, and that when the witness was about half way between the sidewalk and defendant's apartment, defendant came running out the door with a shotgun. The witness testified, in substance, that he had never seen defendant before, and that the latter inquired if the witness was a ‘cop.’ He further testified that defendant kept the gun pointed at the knees of the witness, and that defendant moved the gun with the movements of the witness, keeping it pointed as indicated. The doctor also testified that after he had started back towards his car he heard a shot...