People v. Dye

• Decision Date: 05 June 1959
• Docket Number: No. 61,61
• Citation: 96 N.W.2d 788,356 Mich. 271
• Parties: PEOPLE of State of Michigan, Plaintiff and Appellee, v. Clifford B. DYE, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 788

96 N.W.2d 788

356 Mich. 271

PEOPLE of State of Michigan, Plaintiff and Appellee, v. Clifford B. DYE, Defendant and Appellant.

No. 61.

Supreme Court of Michigan.

June 5, 1959.

Andrew J. Transue, Flint, for appellant, Guy W. Selby, Walter G. Krapohl, Flint, of counsel.

Paul L. Adams, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Frederick C. Ziem, Prosecuting Atty., George F. Taylor, Chief Asst. Prosecuting Atty., G. Edson Hallock, Asst. Prosecuting Atty., Pontiac, for the People.

Before the Entire Bench.

VOELKER, Justice.

On August 26, 1955 defendant-appellant Clifford B. Dye allegedly assaulted one William Clark with a dangerous weapon, to wit: a 25 caliber semiautomatic pisto. At the time of the claimed assault, 4 shots were fired, one of which struck and lodged in Clark's abdominal area. Defendant Dye, a practicing lawyer in Fenton, michigan, was charged with assault with intent to commit the crime of murder and convicted of the lesser included offense of assault with intent to do great bodily harm less than the crime of murder. Upon leave granted he has appealed.

Defendant and complainant first became acquainted about 2 years before the alleged assault, when Clark retained defendant to represent him in a legal matter. Shortly thereafter the two entered a farm tenancy relationship, wherein Clark as tenant leased a farm controlled by defendants as attorney in fact for his sister, who lived in Kentucky. Thereunder Clark acquired pasturage and other use of certain adjoining farm lands (also owned by the sister), including the property upon which defendant was living and upon which the alleged assault occurred The agreement was that Clark was to develop a dairy farm and that the parties were to divide the expenses and profits.

In the beginning it appears that all went well, but as time went on and profits increased the friendly relationship cooled. Finally at almost every meeting the parties had heated arguments, at least one of which resulted in physical violence for which complainant Clark was accused, tried and acquitted of assault and battery. At the present trial Clark claimed that the cause of their trouble was the defendant's desire to oust him from the farm (which farm Clark claims was in reality owned by the defendant and put in his sister's name to avoid the claims of creditors and various of his former wives) and that to accomplish his purpose the defendant commenced a campaign of harassment, including the service of many legal papers, threats of extensive litigation if Clark retained an attorney, a suit in equity for an accounting, and the cutting off of Clark's income by withholding the farm's milk checks. Defendant denies this and claims that the sole cause of the friction was Clark's violent nature.

On the day of the shooting Clark had driven his truck through defendant's farm so as to do his farm chores, as he had done regularly in the past. His wife and children accompanied him, the latter remaining in the truck, while Clark advanced to the barn. The wife, who testified at the trial, later followed her husband and witnessed most of what transpired. From this point the stories are so conflicting that they cannot possibly be reconciled.

In a nutshell it is complainant Clark's story that after he and defendant first confronted each other on the latter's farm at some distance (18 or more feet) that defendant produced a pistol from his person, brandished it in complainant's direction, and fired into the ground; that Clark, whose wife and children were in the near background, determined to close in and disarm the defendant so as to protect his family and himself; that while they were still some distance apart defendant fired 2 more shots, one of which hit and lodged in Clark's abdominal area; that in the ensuing struggle for the gun, after Clark closed in, still another shot was fired, which hit no one.

Appellant flatly disagreed with this version and testified that at all times Clark was the sole aggressor; that he, the defendant, retreated as soon as he saw Clark; that there was a violent exchange of words and that Clark began to pursue him; that defendant was in mortal fear of his life because of Clark's alleged violent nature and the previous trouble between them, so he drew his pistol from his pocket and shot into the ground hoping to prevent Clark from chasing him further. Defendant claims further that he, an older man, retreated as fast and as far as he was able; that Clark pursued and overtook him and grappled for the gun, cursing and threatening to use it to kill the appellant, and that somehow in the melee the gun was discharged, injuring Clark. In other words, the defendant's defense is one of self-defense plus a claim that in any event the shooting which wounded Clark was accidental.

Appellant's first and fifth questions on appeal are:

'I.

'(a) Did the Court err in failing to direct a verdict of not guilty?

'(b) Did the Court err in submitting to the jury the charges of assault with intent to murder, assault with intent to do great bodily harm, felonious assault and assault and battery?

'(c) Was the verdict against the great weight of the evidence?

'* * *

'V.

'Should the Respondent's motion for a new trial have been granted?'

There is accordingly much discussion in the briefs on both sides regarding appellant's claim of self-defense and the related subject of his need to retreat when he was, as he claims, 'in his own backyard.' In this connection much is sought to be made of the fact that an expert witness for the people testified that he found powder burns on complainant's clothing--thus showing, as appellant claims, that Clark was shot at close range, and further showing, as appellant also claims, that he had indeed retreated and was pursued and overtaken by the homicidal Clark, whereupon, during the ensuing struggle, the gum was accidentally discharged.

On this score we need only point out that the expert witness did not say Clark wa shot at close range, but merely that one or more shots appear to have been fired at close range, which was not seriously disputed by anyone. As for the disputed claim of self-defense, retreat, and all the rest--the jury heard the conflicting stories and apparently took more stock in Clark's version than in the defendant's. We see no reason to change the result. We also observe that if complainant's story was believed (that he was first shot at by defendant at some distance and before he, Clark, had made any move toward the defendant, hostile or otherwise), subsequent claimed retreat and acts of self-defense by defendant would be irrelevant.

In essence then, appellant seeks to question the sufficiency of the people's evidence. Defendant is not entitled to a redetermination of the facts in this Court; they were settled by the jury and we will not go into their determination so long as there was sufficient evidence presented from which the jury might have found the defendant guilty beyond a reasonable doubt. We think there was.

We are not happy to note that because of the extreme self-serving nature of the briefs and appendices presented here on both sides, we found it necessary, in order to get a fair picture of the evidence, to make a careful study of the entire trial transcript, no easy chore. The transcript not only contained sufficient testimony, if believed, to support the verdict, but also to sustain the court's refusal to direct a verdict of not guilty and also to sustain the court's instructions regarding the 4 different categories of assault. Under the information filed and evidence presented in this case we believe the jury was warranted in convicting for the offense for which it found defendant guilty.

Appellant's second question is:

'II.

'(a) Was the conduct of the Assistant Prosecuting Attorney unfair, improper and prejudicial so as to constitute reversible error?

'(b) Did the Court err in failing to hold the Assistant Prosecuting Attorney in check in the matters referred to in question (a)?

'(c) Did the Court err in overruling the Respondent's several objections to the matters referred to in question (a)?

'(d) Did the Court err in overruling the Respondent's request that a mistrial be declared?'

Defendant claims support for the above contentions by alleging that the court erred in allowing the prosecutor by direct and cross-examination to bring out and refer to certain allegedly irrelevant and collateral matters pertaining to the defendant's varied marital life, his ownership of property, his professional experience and training, and numerous other things. From our study of the trial transcript we are of the opinion that in so doing the prosecutor was in good faith attempting to show a motive for the crime and to attack the credibility and show the possible bias of the defendant and certain of his witnesses. Although there is much in the transcript that might well have been omitted, we do not feel that the uncalled for matter in any way prejudiced the rights of the defendant. In this area the trial court necessarily possesses a broad discretion, and unless that discretion is abused this Court will not interfere. We find no such abuse. (See, generally, 1 Gillespie, michigan Criminal Law and Procedure [2d ed.], §§ 400, 401, and cases cited therein.)

Appellant's third question is:

'Did the Court err in refusing to permit the Respondent, under the claim of self defense, to recite in evidence knowledge received by him from third parties, prior to the alleged assault, of incidents of violence and brutality on the part of the Prosecuting Witness (Clark)?'

For purposes of this opinion we will assume, without deciding, that the court did err in not admitting the proffered testimony. That leaves the question of whether or not that error, in light of the other testimony presented, was prejudicial to defendant's cause. To so determine we must look at the surrounding facts.

Defendant by the forbidden...