People v. Dunn, 139.

• Decision Date: 22 December 1925
• Docket Number: No. 139.,139.
• Parties: PEOPLE v. DUNN.
• Court: Michigan Supreme Court

233 Mich. 185

206 N.W. 568

PEOPLE

v.DUNN.

No. 139.

Supreme Court of Michigan.

Dec. 22, 1925.

Appeal from Recorder's Court of Detroit; Christopher E. Stein, Judge.

John Dunn, under various aliases, was convicted of murder in the second degree, and he appeals. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Chawke & Sloan, of Detroit, for appellant.

Andrew B. Dougherty, Atty. Gen., and Robert M. Toms, Pros. Atty., and Edward H. Kennedy, Asst. Pros. Atty., both of Detroit, for the People.

STEERE, J.

Defendant was convicted, by the verdict of a jury, on January 23, 1925, of murder in the second degree, under an information filed against him charging that ‘said defendant, on the 25th day of January in A. D. 1924, at the city of Detroit, in the county aforesaid, feloniously, willfully, and of this malice aforethought, did kill and murder one William Riley, alias George Kelley, contrary to the form of the statute in such cases made and provided,’ etc., and sentenced to confinement in the state prison at Jackson, Mich., for the term of from 15 to 30 years, without recommendation.

In outline, the testimony introduced shows that a patrolman named Schuler of the Detroit police force was patrolling his beat between 4 and 4:30 in the morning of January 25, 1924, and on arriving at the corner of John R and Montcalm streets in said city halted temporarily at that corner and looked south along John R street which runs in a northerly and southerly direction. While so looking he heard a shot, and saw what he called gray smoke coming from underneath the porch of a house at premises described as 2325 John R street. He then started down the street in that direction with his revolver in his hand, not going very fast, as he said, because he could not see anybody, and just before reaching the house he heard the front door slam. He went upon the porch and attempted to push or kick in the door but could not move it. He then noticed a pool of blood on the porch floor a little larger than a dinner plate and a hat near it. He then jumped over the porch rail into an alley at the side of the house and looked for footprints in the snow which had recently fallen but saw none, and, as he hurried out of the alley, he met an automobile which drove up with three detectives of the police force in it, named O'Day, Frazier, and Swords. They had been out on some other mission, but happened to stop near by there to allow one of their number to leave the car, and, hearing the shot, drove up to investigate.

Learning the situation so far as related and pointed out by Schuler, they immediately surrounded the house, while Schuler went down and pulled ‘the box for a flier.’ Frazier covered the corner of Montcalm and John R streets and O'Day stationed himself in the alley in the rear of the house while Swords went around to the front door and knocked, at first getting no response, but on his knocking louder a woman answered from within. He told her he was an officer and demanded that she open the door. She then screamed, and when again asked by the officer to open the door said that she could not do so. The flier from the station had then arrived, and Swords, with the assistance of an officer who came in it, broke open the door. It had three or four locks upon the inside which were so strong that the whole door jamb had to be pushed in to obtain entrance. Upon entering, they found the body of a man known as William Riley, alias George Kelley, lying on his back with a bullet wound in his neck, his head being toward the west, with his feet close against the door, and his body in line with it. He was yet bleeding from a hole through his neck, and there was a quantity of blood on the floor where he lay. The physician who examined the body testified that death was caused from a hemorrhage from a gunshot wound through the neck; the point of entrance being one inch below the angle of the jaw on the left side, the bullet passing through the neck and lodging immediately under the skin three inches below and three inches back of the temporal bone on the right side.

After Detective O'Day had taken his position in the alley at the rear of the house, and the officers at the front were trying to get in, he heard a noise which sounded to him as if some one was coming out through a window at the rear of the house, but could see no one. When the flier which had been sent for arrived he called for them to throw the light of their auto over the back yard, which they did. He then saw defendant, who had hid under a porch, or the lower steps of an outside stairway leading to the second floor at the rear of the house. As the light struck defendant, he came out with his hands raised, calling, ‘Don't shoot,’ going towards O'Day, who arrested and handcuffed him. He was then without hat or coat. O'Day said it was about three minutes after he heard the window open and the flier come up that they discovered defendant with the flash light. A police lieutenant named Schould, who came up with the flier, describes the arrest as follows:

‘We met Detective O'Day in the alley. He says, ‘I think he is in the back yard in that place; I heard somebody coming out of the window.’ We threw the light in, and Dunn walked up. I grabbed his arm and pulled a gun out of his hand. O'Day handcuffed him and took him out of (to) the car. Dunn said, ‘Boys, give me a square deal; you can get him inside of the door right there on the floor.’ * * * I heard him say, ‘I guess he was after me, and he was trying to get me,’ and ‘I beat him to it,’ and I heard similar remarks that he tried to get Dunn.'

Several of the officers were sufficiently near to witness part or all of the arrest and what was said and done until defendant was taken away to the station, and told of what he said during that time in urging his claim of self-defense. O'Day testified:

‘After I put the handcuffs on him I took him to the Ford car and stayed there with him. He says, ‘Give me a square deal-the other fellow is probably worse than I am.’'

Cross-examination:

‘I asked him if he was the man killed this man, and he said, ‘Yes.’ He did not tell me that he was after him. The conversation with Mr. Dunn was while we walked from the rear of the house around to the front. Mr. Dunn says: ‘The other fellow is probably worse than I am.’ ‘I shot him because he was trying to get into my home.’ ‘You go in there in the house, and you will find a .45 automatic gun in his pocket in his overcoat.’ I did not hear him say, ‘When I opened the door he stuck his gun up on me,’ or words to that effect, or ‘And I beat him to it.’'

Detective Swords testified:

‘Before I really saw him, I heard some talk at the corner of the house; as they walked from the alley around to the corner I heard Dunn say, ‘That fellow is a worse fellow than I am, if you look in his right-hand overcoat pocket you will find a .45 automatic yourself.’'

Detective Frazier testified:

‘I don't remember whether he told me that this man threatened his life. He told me: ‘I guess he was after me.’ ‘I heard a rap at the door. I figured it was him; when I opened the door he stuck his gun up in my face. I was too quick for him.’'

Two women were found in the house, a young woman in bed up stairs, and an older woman down stairs in the back part of the house. Both claimed to have been up stairs in bed and sleeping when the shot was fired and knew nothing of the transaction until the officers started to pound on the door, when the older one said she came down stairs to open the door and stumbled onto the body of the dead man, but before she could get the door opened the officers broke in. Schuler testified that as they brought Dunn around through the alley he said, ‘Get that other woman in the kitchen,’ and ‘I want you for a witness, I want you for a witness, I want you for a witness,’ but she made no reply.

After Dunn had told the officers deceased had an automatic gun in his overcoat pocket, Lieutenant Schould looked and found one in deceased's right-hand overcoat pocket. There was a full clip of loaded shells in the magazine, but no shell had been thrown into the barrel. The gun taken from defendant was a .38 caliber revolver, with four loaded shells in the chamber and one empty shell. The bullet taken from deceased's body corresponded in size with those in the loaded shells.

At the time of his arrest, defendant was recognized by the detectives who first drove up after the shooting as the man they had seen about half an hour before while they were patrolling the streets. They had noticed him standing in the street a few blocks from the scene of the shooting at the corner of Wilkins and Brush streets. They stopped and asked him what he was doing there, and he explained to their satisfaction that he had been out with a party of friends in a car, who had left him there temporarily, and were to be back and pick him up soon, and they drove on.

Officers were left in charge of the place and the dead man where found until men from the coroner's office came and took the body. A photograph was taken of the place and room where the body was found, after daylight that day, and the two revolvers were preserved for evidence in the condition they were when taken. The dead man was recognized by officers and records of the police department, including thumb prints, as William Riley, alias George Kelley. The two women found in the house, who gave their names as Florine Higgins and May Edwards, the latter being the elder one, were taken to the police station and examined; their statements being taken down by a stenographer. They again denied any knowledge of the shooting except the aftermath as before related, and were released.

Upon the trial, the accused's major defense was self-defense, based on his res gestae assertions when arrested, and testimony to the effect that Kelley was a gunman of bad character, who had made threats against him. At...