People v. Durfee

• Decision Date: 21 July 1886
• Citation: 62 Mich. 487,29 N.W. 109
• Court: Michigan Supreme Court
• Parties: PEOPLE v. DURFEE.

29 N.W. 109

62 Mich. 487

PEOPLE v. DURFEE.

Supreme Court of Michigan

July 21, 1886

Error to Barry.

A.R McBride, for defendant and appellant.

SHERWOOD, J.

The respondent was charged with murdering William Scudder (under-sheriff of the county of Barry) on the fourteenth day of May, 1884. He was arrested for the crime charged on the same day, and waived an examination. On the nineteenth day of August, 1884, the respondent was arraigned, pleaded not guilty, and on the twenty-seventh of August following his trial commenced, and continued through the three days following, when the case was submitted to the jury, and he was found guilty of murder in the first degree, and was sentenced to state prison for life. The case is now before us for review. The bill of exceptions is quite full, and contains all the testimony on the subject of insanity of the defendant; and the bill states, further, that it "contains all that was given upon the trial material to the questions raised."

Scudder was shot instantly dead, while attempting to arrest the respondent near his house in the town of Rutland, in said county, by virtue of a warrant then in his possession.

Ten errors are assigned by counsel for respondent as ground for reversal.

It appears that a Mr. Thorp had, some time previous to the killing, a civil suit against the respondent, in justice's court, and had obtained a judgment against him and respondent had appealed the case to the circuit. The case was on the calendar for trial at the May term, 1884, and the respondent desired to continue the case, and two days before the homicide occurred he was in conference with his counsel Mr. Van Arman, upon the subject, and was told by his counsel that he could not make the necessary affidavit for the purpose. Respondent then said he would come into the court-room, and make an affidavit before the court; that he would kill any man that would undertake to interfere with his property in the realization of the judgment. The case, on appeal in the circuit, was tried therein the next day, and judgment again went against the respondent; and on the morning of the day of the killing he inquired of his counsel Mr. Van Arman, the result in his case; and on being informed and advised that he had better pay it; that, if he did not, they would issue an execution and sell his property,--respondent replied that he did not, in equity, owe the debt, and never should pay it; and that he would kill any man that undertook to collect it, or to interfere with his rights or his property in the realization of the judgment. This testimony, given by Van Arman, was objected to upon the ground that it had not yet been shown that any crime had been committed; that, while it was the theory of the prosecution that the respondent fired the pistol ball that that killed Scudder, it was the belief of respondent that the ball that did the fatal work was shot from a pistol fired by Mr. Geer, who was a deputy-sheriff, and at the time of the killing was assisting Under-sheriff Scudder. Of course, the testimony was offered for the purpose of showing that the killing was from a certain motive, and premeditated. It was competent testimony in the case, and the objection went to the order, and not to the materiality. It was admitted in its chronological order, and the discretion used in receiving it at the time it was offered worked no harm to the respondent. Its admission was not error. People v. Marion, 29 Mich. 37; People v. Saunders, 25 Mich. 119; Hutchins v. Kimmell, 31 Mich. 126; Morse v. Hewett, 28 Mich. 481; Hulbert v. Hammond, 41 Mich. 343; S.C. 1 N.W. 1040; Kempsey v. McGinniss, 21 Mich. 123, Hoffman v. Harrington, 44 Mich. 183; S.C. 6 N.W. 225; Brown v. Marshall, 47 Mich. 576; S.C. 11 N.W. 392. In cases where justice demands a different course to be taken, and the respondent has been prejudiced by not adhering to the general rule, the discretion will be regarded as abused, and courts of last resort will correct such error. People v. Hall, 48 Mich. 482; S.C. 12 N.W. 665; People v. Millard, 53 Mich. 63; S.C. 18 N.W. 562. No such result, however, was probable, or even possible, as this case stood when the evidence was received.

The respondent's counsel objected to the introduction of the warrant in evidence under which it was sought by Scudder and the deputy-sheriff to arrest the respondent at the time of the shooting. It is not claimed that the writ was invalid, but that Geer held it at the time instead of Scudder. The court held, and so charged the jury, that it made no difference which one held the warrant, so long as the two went there to serve it, and acted in concert in the discharge of that legal duty. This holding was correct, and the testimony was not objectionable upon any ground that we have been able to discover. No defect appeared upon the face of the warrant. It imposed upon Scudder the duty to arrest the respondent, and upon the latter submission to the arrest. Sweet v. Negus, 30 Mich. 406.

The third error assigned relates to a conversation respondent had with his counsel in the jail, and which was overheard by Deputy-sheriff Geer. When Mr. Geer was sworn, he was examined on the part of the prosecution, and cross-examined by respondent's counsel, and discharged. He was subsequently recalled for further cross-examination by respondent, and in the testimony then given the witness' attention was called to the fact of a conversation with the respondent's counsel in jail, and which was overheard by the witness. On the redirect examination the witness was asked to give the conversation he overheard, and counsel for respondent objected, but no ground is stated for the objection, and we think the evidence obtained in answer to the question was unobjectionable, and no more need be said upon this point. Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502; People v. Barker, 27 N.W. 548.

The fourth error assigned relates to the failure of the prosecutor to place upon the information the names of eight witnesses for the people, before the trial began, or before the respondent had rested his case. These witnesses were used on the people's rebutting case, and most of them upon the subject of respondent's insanity. When these witnesses were called no objection was made to their being sworn, but to their being examined. When the objection was made the court ordered their names to be placed upon the information. Their names were not formally placed upon the information, but the order was sufficient for that purpose. The bill of exceptions does not appear to contain all the testimony given upon the trial, nor all the proceedings had thereon. Undoubtedly, satisfactory reasons were given which induced the court to make the order he did in relation to these witnesses. And it is not always possible for the prosecution to know in advance what witnesses it may be necessary for the people to call when the trial commences, on rebuttal, or even in making out the main case, and there must necessarily be some discretion allowed to the trial judge upon this subject, that the ends of justice may be subserved. It is to this end all rules must be made to conform, and all statutes construed, or the law would become a snare rather than a means of protection and safety. After a careful perusal of the record we fail to discover any injustice done to the respondent by the course pursued by the circuit judge, and we think no error was committed in his rulings upon this objection.

The fifth assignment of error relates to the testimony of witness Otis, given on rebuttal, as to statements made to him by Geer after Scudder was shot, to the effect that a short time after the killing Geer did not tell the witness that Scudder shot to scare the respondent, or to let him know he was armed. This interview took place between the witness and Geer immediately after the shooting occurred, and while Geer was in pursuit of the respondent to arrest him. A witness by the name of Bruss had been called, and testified to the conversation for the purpose of impeaching Geer, and Geer was recalled as to this conversation, and asked the question objected to which related to the same conversation. We think it was competent for the court to allow so much of the conversation to be given on the occasion as related to the...