People v. Dane

• Decision Date: 03 February 1886
• Citation: 59 Mich. 550,26 N.W. 781
• Court: Michigan Supreme Court
• Parties: PEOPLE v. DANE.

26 N.W. 781

59 Mich. 550

PEOPLE v. DANE.

Supreme Court of Michigan

February 3, 1886

Error to Alpena.

Geo. H. Sleator, for defendant and appellant.

CHAMPLIN, J.

In this case we are asked to reverse the judgment on the ground that there was not sufficient evidence to support the conviction. We think that there was evidence tending to prove the allegations of the information. It was not very direct and positive, but the jury are the proper persons to draw all proper inferences from the facts proved. The case must be reversed, however, upon another ground. The prosecuting attorney, in addressing the jury on behalf of the people asserted to the jury that he knew that the defendant was the man who took the money. The attorney for the defendant objected to this remark, as well as to another made by the prosecutor that the defendant's assault upon Waltonbury was an outrageous one, and defendant's counsel took exceptions to such remarks. The court instructed the jury that this remark about Waltonbury was entirely unwarranted by the evidence, but said nothing in reference to the prosecutor's positive statement to the jury that he knew that the defendant was the man who took the money. It is the duty of the public prosecutor to see that the person charged with crime receives a fair trial, so far as it is in his power to afford him one, and it is likewise his duty to use his best endeavor to convict persons guilty of crime; and in the discharge of this duty an active zeal is commendable, yet his methods to procure conviction must be such as accord with the fair and impartial administration of justice; and it is improper for one occupying the position of the prosecuting officer to make a statement to the jury of a fact as of his own knowledge, which has not been introduced in evidence under the sanction of an oath, relating to the material issues in the case. State v. Balch, (Kan.) 2 Pac.Rep. 609. If the prosecutor was cognizant of the fact that the defendant was the man who took the money, and wished the jury to be possessed of his knowledge, he should have been sworn as a witness, and given his evidence in the usual way, so that the defendant could have the benefit of a cross-examination. Nor can we say that the statement made by the prosecutor was error without prejudice. It is impossible to tell what influence the statement had upon the mind of the jury. It is presumable that statements of fact based upon personal knowledge, made by a person occupying the responsible position of prosecuting attorney of a county, whom the people have chosen because of his ability and character to fill that position, would have both weight and influence with the jury, and may have determined any doubt which they, or some of them may have entertained of the defendant's guilt against him.

The judgment must be reversed, the conviction set aside, and a new trial granted.

(The other justices concurred.)

NOTE. And it has been held that when the prosecuting attorney does comment on the omission of the defendant to testify, and a conviction follows, the case will be reversed, even though the court checked the attorney in his remarks and instructed the jury to pay no attention to what he had said. Long v State, 56 Ind. 182.

But it is said in Petite v. People, (Colo.) 9 Pac.Rep. 622, that although counsel should not comment in argument upon the defendant's a refraining from giving testimony in his own behalf, yet, if he does, and then desists immediately upon objection, and the court warns the jury thereafter that defendant's silence must not be considered against him, there is no prejudice worked such as to warrant a new trial.

It is said in Huber v. State, 57 Ind. 341, not to be error for the prosecuting attorney, in his address to the jury, to comment on the appearance of the defendant while giving his evidence.

A judgment will not be reversed for misconduct of counsel in argument in a criminal case, unless it was such misconduct as to prejudice the substantial rights of the accused. Snur v. State, (Ind.) 4 N.E.Rep. 445.

It is said in Bohanan v. State, (Neb.) 24 N.W. 390 where it is alleged that an attorney, in the argument to the jury, went outside of the record and appealed to the passions and prejudices of the jury, the attention of the court should be called to the language and conduct of the attorney by the proper objection, and a ruling had thereon by the court. If the objection is overruled and an exception taken to the ruling, the question may be reviewed in the supreme court upon the decision of the trial court. Without such ruling and exception, there is nothing for the reviewing court to consider. See Bradshaw v. State, (Neb.) 22 N.W. 361; Tucker v. Henniker, 41 N.H. 317; Gilooley v. State, 58 Ind. 182; McLain v. State, (Neb.) 24 N.W. 720.

The conduct and management of the argument upon the trial of either a civil or criminal prosecution is largely within the discretion of the trial court, and it is only when some abuse of this discretion, to the probable injury of a party, is shown, that an appellate court will interfere. Epps v. State, (Ind.) 1 N.E.Rep. 492; Scripps v. Reilly, 35 Mich. 371; Kaime v. Trustees, (Wis.) 5 N.W.Rep. 838; Rehberg v. Mayor, (N.Y.) 2 N.E.Rep. 11; State v. Hamilton, 55 Mo. 520.

As a general rule counsel must confine their argument to the facts brought out in evidence. Brow v. State, (Ind.) 2 N.E.Rep. 296; State v. Lee, 66 Mo. 165; Dickerson v. Burke, 25 Ga. 225; Cartwright v. State, 16 Tex.App. 473; Union Ins. Co. v. Cheever, 36 Ohio St. 201.

In Cleveland Paper Co. v. Banks, (Neb.) 16 N.W. 833, where the attorney of the successful party was permitted to comment on evidence that had been excluded, it was held error for which a new trial must be granted.

It is error to suffer counsel, over objection and exception, to comment even on facts pertinent to the issue, if not in evidence, Brown v. Swineford, 44 Wis. 282; Yoe v, People, 49 Ill. 410; Bill v. People, 14 Ill. 432; Kennedy v. People, 40 Ill. 489; or to appeal to prejudices foreign to the case made by the evidence. Ferguson v. State, 49 Ind. 33; State v. Smith, 75 N.C. 306; Hennies v. Vogel, 66 Ill. 401; Bohanan v. State, (Neb.) 24 N.W.

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