People v. Diamond

• Decision Date: 18 June 1925
• Docket Number: No. 110.,110.
• Citation: 231 Mich. 484,204 N.W. 105
• Parties: PEOPLE v. DIAMOND et al.
• Court: Michigan Supreme Court

231 Mich. 484

204 N.W. 105

PEOPLE

v.DIAMOND et al.

No. 110.

Supreme Court of Michigan.

June 18, 1925.

Appeal from Recorder's Court of Detroit; John Faust, Judge.

Loucia Diamond and George Diamond were convicted of pandering, in violation of Pub. Acts 1919, No. 389, and they bring error. Reversed, and new trial granted.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. John W. L. Hicks, of Detroit, for appellants.

Andrew B. Dougherty, Atty. Gen., and Robert M. Toms, Pros. Atty., and Eugene A. Walling, Asst. Pros. Atty., both of Detroit, for the People.

SHARPE, J.

Defendants review their conviction and sentence on a charge of pandering, in violation of Act No. 389, Pub. Acts 1919, by writ of error. At the hearing in this court, the prosecuting attorney confessed error. We have examined the record with care, and are satisfied that such errors occurred in the admission of evidence as warranted this concession and necessitate a reversal.

The defendants were first put on trial on October 2, 1924. After a jury had been sworn and a witness examined in part, a recess for luncheon was taken. When court reconvened, the jury were discharged for the reason hereafter stated. Another jury was impaneled and sworn. Defendants entered a plea of former jeopardy, which was overruled. The assignment of error based on such action must be considered, because, if the plea should have been sustained, it must result in the discharge of the defendants.

The record discloses that when the court reconvened after luncheon on October 2d, the prosecutor, in the absence of the jury, stated to the court that he had been informed that ‘the daughter of the defendants was at the lunch table with two of the jurors.’ This daughter, Mrs. Stevens, was questioned by the court. She stated, in answer to a question, ‘How did you happen to do that?’ ‘I don't know. I just sit there. You know, we don't find no place, and we just stop there.’ On being asked if she recognized the men at the table as jurors, she said, ‘I seen them sit in the chair.’ When afterwards asked, ‘You knew, when you sat at the table, that they were jurors in this case?’ she answered, ‘No; I didn't,’ and, on being pressed, ‘Are you sure of that?’ said, ‘I am sure.’ She was then asked if she talked with the men, and answered, ‘No.’ Later she was again asked, ‘Were you talking to these two jurymen?’ She answered, ‘I never said nothing; I am telling you the God's truth.’ ‘Did they tell you anything?’ ‘The man said, ‘Have you got any case?’ I said, ‘Yes; it is my mother's case.’ That is all. I have nothing to say more.' This was followed by a private conference between the court, the prosecutor, and the defendants' attorney. The jury were then called in. The two jurors were questioned. They stated that two ladies, one of them being Mrs. Stevens, sat down at the same table with them, that ‘some remarks passed back and forth,’ and that one of them said she was the daughter of the two defendants on trial, and that one of the jurors said to her, ‘You better had say nothing to us, because we are one of the jurors.’ After deliberation, the trial court...