People v. Davis

• Decision Date: 06 February 1884
• Citation: 52 Mich. 569,18 N.W. 362
• Court: Michigan Supreme Court
• Parties: PEOPLE v. DAVIS.

18 N.W. 362

52 Mich. 569

PEOPLE v. DAVIS.

Supreme Court of Michigan

February 6, 1884

In a prosecution for adultery the state is not restricted to the time mentioned in the indictment, and if a statement is called for by the defense, particularizing the times and places at which were committed the acts upon which conviction is sought, the court should require it to be given, for the defendant might otherwise be altogether misled in his preparation for a defense.

One year being the period in which such an action is required to be brought, evidence of suspicious acts between the parties accused committed a year prior to the action should not be admitted, unless to prove a long-continued series of such acts.

Where statements made to the prosecuting attorney by the complainant, at the commencement of the criminal proceedings would tend to discredit his testimony at the trial, they should in fairness to the defendant be admitted. In this case the communication was made to a public officer, and the party making them can assume no control as to the use made of them subsequently. They are not in such a case privileged.

Error to Macomb.

J.J. Van Riper, for the People.

Edgar Weeks, for appellant.

COOLEY C.J.

The information in this case charges the respondent with having committed adultery with one Sarah M. O'Rourke, the wife of Thomas O'Rourke, at the township of Armada, in Macomb county, on the first day of September, 1881. Before the case came on for trial the respondent moved the court that the prosecuting attorney be required to furnish to respondent's counsel a particular statement, specifying the times and places where the alleged acts of adultery upon which he expected to rely for a conviction were suffered to have been committed. This motion was denied.

The record does not show whether respondent had had any preliminary examination upon the charge; but if he had it, it is to be presumed the information was framed with reference to the facts then disclosed, and that the evidence was directed to some transaction of or near the date mentioned in the information. But as the prosecution would not be restricted on the trial to the time mentioned in the information, (People v. Jenness, 5 Mich. 305,) we think the particulars called for should have been required. The justice of such a requirement was made apparent by the very first step taken by the prosecution in the cause; for instead of attempting to prove an act of adultery occurring on or near September 1, 1881, the complaining witness swore to having caught the parties flagrante delicto on the night of April 30, 1882 and it was upon this evidence that a conviction was sought and obtained. If the prosecution, when the information was filed, intended to rely upon proof of a transaction in April the information--which was verified by the oath of the prosecutor himself, testifying as of his own knowledge--should have given that as the time of the alleged offense; for the defendant might otherwise be altogether misled in his preparation for a defense. And whenever it is possible that such a result might follow, the court should guard the respondent against it by requiring a statement of particulars, if the defense calls for it. This may perhaps be a matter of discretion in the court, but as the case must go back for a new trial on other points, we think it proper to call attention to it.

Thomas O'Rouke was the complainant in the case. It is objected that only the respondent's wife is authorized by the statute to make complaint, (Howell's St.� 9279;) but the contrary was held in Bayliss v. People, 46 Mich 221, [[S.C. 9 N.W. 257,] and we have seen no reason for doubting the correctness of that decision. The prosecutor gave his evidence in the case at length, and when the defense entered upon their proofs. Mr. Lowell, who was prosecuting attorney of the county when the prosecution was begun, was called to the stand, and was asked, with a view to impeaching the prosecutor, whether in the statement O'Rouke made to him he did not say that on the occasion when he saw his wife and respondent together on April 30, 1882, he saw nothing wrong between them. Objection was made to this question by both Mr. Lowell and the present prosecuting attorney, on the ground that communication made by the prosecutor to the prosecuting attorney were privileged, and the court sustained the objection. It does not appear to have been claimed that Mr. O'Rouke had any...