People v. Davis

Decision Date03 October 1955
Docket NumberNo. 65,65
PartiesThe PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Thomas Arlan DAVIS, Defendant and Appellant.
CourtMichigan Supreme Court

D. Bruce Wistrand, Flint, for appellant.

Thomas M. Kavanagh, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Jerome F. O'Rourke, Pros. Atty. Genesee County, Flint, John F. Young, Ass't Pros. Atty. Genesee County, Flint, for appellee.

Before the Entire Bench.

BUTZEL, Justice.

Thomas Arlan Davis appeals from his conviction of the crime of murder, second degree. He was charged with murdering Ramona Juanita Davis, his wife. About 10 o'clock in the evening of August 9, 1952, defendant and his wife were driving north on Root street in the city of Flint. They had been quarreling apparently over whether or not he should drive her to Muskegon that night. While both had been drinking previously, there is no claim that defendant was intoxicated. As they approached the intersection of Root street with Louisa street, which runs east and west, they stopped the car and defendant's wife alighted from the car and started walking diagonally across the intersection of the sidewalks at the southeasterly intersection of the two streets, and apparently continued walking east on the south sidewalk of Louisa street. Witnesses heard the two arguing as she was leaving the car. It appears from the skid marks on the pavement that the car lurched forward on Root street, skidded around the corner to the right or east on Louisa street, turned to the south and ran across the sidewalk into the yard, demolished part of the back porch of the corner house facing Root street, and the continuing on in a circle turned north again and ran back over the sidewalk and finally came to rest on the north side of Louisa street. The body of the wife was found not far from the back porch. She died soon thereafter principally as a result of crushed vital organs. The prosecution claims that it was a deliberate murder. Defendant claims that it was an accident. He was very unfortunate in that he had lost his left leg and injured his left arm as the result of a motorcycle accident so that his freedom of movement on this occasion was very much restricted. He maintained that when his wife left the car she 'cramped' the steering wheel and that he accidentally pressed upon the accelerator and the car swerved out of control. Specific detalis about the crime as well as other evidence and testimony introduced in the course of the trial will be referred to in our discussion of the errors claimed. There was undoubtedly sufficient testimony to justify the jury in its conclusion that defendant purposely and not accidentally caused his wife's death. We allowed an appel from the conviction and the court's refusal to grant defendant's motion for new trial. In a very complete and well prepared brief, defendant's counsel have raised a large number of claims of error that require discussion and a lengthy opinion.

Defendant attacks the original jurisdiction of the court on the ground that the municipal judge to whom the complaint was made did not make a finding of probable cause supported by oath or affirmation prior to issuing the warrant. A detective of the Flint police department presented the complaint and warrant to the municipal judge. The officer testified that the judge took no testimony but that he, the officer

'* * * submitted the papers for the court's information so he might see what the charge was. He asked me to swear to it, I did, and he signed it, and he was arraigned.'

Defendant argues in effect that the examination of witnesses or the taking of oral testimony is indispensable to the issuance of a complaint and warrant. This argument is adequately answered by the case of People v. Mosley, 338 Mich. 559, 564, 61 N.W.2d 785, 788, where a similar contention was made, and denied in the following language:

'This court, in People v. Lynch, 29 Mich. 274; Potter v. Barry Circuit Judge, 156 Mich. 183, 120 N.W. 586; and People v. Czckay, 218 Mich. 660, 188 N.W. 376, settled the question that a complaint which, upon its face, purports to be made upon the knowledge of the affiant is a sufficient compliance with the statute, and that it is incompetent for a defendant upon arraignment to impeach the complaint by showing a lack of knowledge by the complaining witness. The positive statements made upon the oath of the complainant gives the magistrate jurisdiction to issue the warrant. The fact that 'it does not appear there was no examination of witnesses under oath', or that the complainant did not adhere to the truth, cannot avoid a warrant. People v. Hare, 57 Mich. 505, 24 N.W. 843, 845, and People v. Schottey, 66 Mich. 708, 33 N.W. 810. Jurisdiction having attached for the issuance of the warrant, it could not be later impeached. Potter v. Barry Circuit Judge, supra.'

Defendant next claims that there was not sufficient evidence produced at the preliminary examination to bind him over on a charge of first degree murder. The statute, C.L. 1948, § 776.13, Stat.Ann. § 28.931, requires a finding of probable cause. It is not required that the guilt of a defendant be established beyond a reasonable doubt. People v. Asta, 337 Mich. 590, 60 N.W.2d 472. While we may not agree with the findings of the magistrate, we cannot substitute our judgment for his determination of probable cause unless there has been a clear abuse of his discretion. People v. Dellabonda, 265 Mich. 486, 251 N.W. 594; People v. Karcher, 322 Mich. 158, 33 N.W.2d 744. Where a complaint charges that an accused feloniously, wilfully and of malice aforethought did kill and murder, the certification to the circuit court need not specify whether it was first or second degree murder. Cargen v. People, 39 Mich. 549. The evidence regarding defendant's previous disposition toward his wife as well as the medical testimony and the physical facts themselves were sufficient to uphold a finding of probable cause. The circumstantial and inferential evidence offered by the prosecution weighed against defendant's denials to the investigating officers and support the finding made.

The complaint was received and the warrant thereafter issued by Flint Municipal Judge John W. Baker. The return after preliminary examination is signed by Municipal Judge Dale C. Showley before whom the preliminary examination took place. Defendant contends that the return is void and failed to give the circuit court jurisdiction because of ambiguous references apparently to another judge and because the statute requires the judge who issued the warrant to sit at the preliminary examination. There were two judges of the Flint municipal court who sat on this case in its preliminary stages. The judge who issued the warrant was called away and the other judge conducted the examination. The statute, C.L.1948, § 774.47, Stat.Ann. § 28.1237(2), provides:

'In any city having more than 1 justice of the peace, or other judicial officer having the criminal jurisdiction of a justice of the peace, whenever a warrant shall be issued for the arrest of any person charged with any offense against the laws of the state, or for the violation of a city ordinance, any justice or other judicial officer of said city shall have jurisdiction to arraign, set bail, adjourn, try, take testimony in, conduct a preliminary examination, dismiss, hold for trial in circuit court, and to do any act or acts in connection with the trial and disposition of any such case brought before any such justices of the peace * * *.' (Emphasis added.)

This effectively disposes of defendant's contention.

In his opening statement the prosecutor said, inter alia, that he would show the jury certain prior assaults by the accused upon his wife and further stated that:

'We will show you, members of the jury, that this was not an accident; that the respondent in this cause, Mr. Davis, is a man of violence * * *.'

Defendant cites this as error, asking:

'May the prosecutor in his opening statement to the jury describe several prior unrelated, unconnected, alleged assaults by respondent on deceased and then characterize and call him a man of violence?'

He argues that the effect of the prosecutor's statement was to put his character in issue before there was first offered testimony as to his good character or reputation. The effect of the statement was not to put defendant's character at issue except as may have been done inferentially from evidence of prior assaults by him upon his wife. As will appear in the course of this opinion the evidence of these assaults was admissible as bearing upon defendant's intent in committing the crime of which he was charged. It is the rule that where in an opening statement the prosecutor makes statements which may not be substantiated at the trial by the evidence, we will not reverse for that fact alone in the absence of a showing of bad faith on the part of the prosecutor or prejudice to the defendant. People v. Ryckman, 307 Mich. 631, 12 N.W.2d 487, and cases cited therein. Defendant has made no such showing, nor does any appear from the record. He specifically cites People v. Wheaton, 207 Mich. 173, 173 N.W. 335. There the prosecutor, in his opening statement, referred to previous offenses committed by the accused and on trial introduced evidence to substantiate the statement. The instructions to the jury did not limit consideration of such as bearing only upon defendant's credibility. We reversed mainly because we considered the evidence of previous offenses inadmissible in that case. However, in the instant case, it will appear that such evidence was specifically admissible to show intent. Therefore, no error was committed.

On Monday, January 12, 1953, the day previous to that on which the case was set for trial, the prosecutor moved that three additional names be endorsed on the information. Two of the persons were police officers from Muskegon...

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