People v. Elco

• Decision Date: 29 May 1903
• Citation: 94 N.W. 1069,131 Mich. 519
• Court: Michigan Supreme Court
• Parties: PEOPLE v. ELCO.

94 N.W. 1069

131 Mich. 519

PEOPLE v. ELCO.

Supreme Court of Michigan

May 29, 1903

On rehearing. Affirmed.

For former opinion, see 91 N.W. 755.

Carpenter and Moore, JJ., dissenting.

CARPENTER, J.

The defendant was convicted in the court below of sexual intercourse with one Pearl Arnold, a female under 16 years of age. A full statement of the case is found in 91 N.W. 755. A rehearing was granted, and the case was reargued late in the October term.

The important question is that upon which the justices differed on the former hearing, namely, did the people have a right to impeach Pearl Arnold, one of their own witnesses, by proof of prior contradictory statements? As a witness on the part of the people, said Pearl Arnold denied that she had intercourse with defendant, and she also denied that she was with him in Indiana. The people placed upon the witness stand one Rose Fulks, and the following occurred: 'Q. Now, what did Pearl say, if anything, about Al. and her being together down there in Indiana? (Objected to by defendant as immaterial and not in the presence of defendant.) The Court: I think you may take the answer. It is to be received only as bearing on the credibility of Pearl--not to be taken against the defendant. (Exception by defendant.) Q. Just tell what she said about she and Al. being together in Indiana. A. She said she was out there in Indiana, and she didn't have to work. She said Al. wouldn't let her work nor do nothing, and I said, 'That makes it nice for you don't it?' and she said, 'Yes, it does."

In answer to defendant's argument against the admissibility of this testimony, it is said, first, that the objection of defendant's counsel was not sufficient to permit him to contend that the testimony was not admissible as affecting the credibility of the witness Pearl Arnold; and, second that the testimony was in fact admissible for the purpose of affecting her credibility.

I think the defendant's objection permits him to urge that the testimony was not admissible to affect the credibility of the witness. It is true that this precise objection was not made and that, when the question was first asked, the objection was that the testimony was immaterial, and the conversation not in the presence of defendant. But when the court said the testimony would be received as bearing upon the credibility of the witness, defendant's counsel, by excepting to that ruling, indicated that, notwithstanding this suggested reason, he objected to the testimony. If he had said, 'I object to the testimony because it is not admissible as affecting the credibility of the witness,' which certainly would have been sufficient, he would no more clearly have apprised the court and opposing counsel that he insisted on that objection.

Is the testimony admissible to affect the credibility of the witness? I am by no means sure that the fact that Pearl Arnold and defendant lived together in Indiana had any bearing on the issue in this suit. If it had not, this testimony is clearly inadmissible. I shall assume, however under the authority of People v. Schilling, 110 Mich, 412, 68 N.W. 233, People v. Keefer, 103 Mich 83, 61 N.W. 338, People v. Jamieson, 124 Mich. 164, 82 N.W. 835, and Matthews v. Detroit Journal Co., 123 Mich. 608, 82 N.W. 243, that it had a material bearing on this issue; and, under that assumption, I will consider whether or not it is admissible. Its admissibility for the purpose of affecting the credibility of the witness is urged on two grounds, not entirely consistent with one another, either of which is sufficient: First, it is ruged as a rule of practice, applicable generally, that a party calling a hostile witness, or a witness who testifies contrary to what is expected, may attack his credibility by proving prior contradictory statements; second, if general practice does not justify this method of impeachment, it is insisted that it was proper in this case, because the law compelled the prosecution to call this witness, and therefore exempts it from the operation of the ordinary rule.

The authorities respecting the first of these grounds, as appears from the majority opinion, are not harmonious. They are collected and discussed in the careful and wellconsidered opinion of Mr. Justice Williams in Hurley v. State, 46 Ohio St. 320, 21 N.E. 645, 4 L. R. A. 161. In that case, which was a trial for murder, a witness for the state gave materially different testimony from that given by him at the coroner's inquest. The prosecuting attorney was permitted, against defendant's objection, not only to call the attention of the witness to his former testimony, but was also permitted, in instances where he denied the statements attributed to him, to prove that he made them, by the testimony of the coroner's clerk. The opinion contains a detailed and elaborate examination of the text-books and decisions touching this question. All the cases cited in support of the proposition contended for by Mr. Greenleaf, referred to in the majority opinion, are noticed, and the conclusion is reached that only one of these authorities, namely, State v. Norris, 2 N. C. 437, 438, 1 Am. Dec. 564, and certain dissenting opinions, sustain the text. On the other hand, numerous authorities are cited which oppose it, and the conclusion is reached in that case, as correctly stated in the headnote, that 'a party who calls a witness, and is taken by surprise by his unexpected and unfavorable testimony, may interrogate him in respect to declarations and statements previously made by him, which are inconsistent with his testimony, for the purpose of refreshing his recollection and inducing him to correct his testimony or explain his apparent inconsistency; and, for such purpose, his previous declarations may be repeated to him, and he may be called upon to say whether they were made by him. In case the witness denies having made such statements, or his answer is ambiguous concerning them, it is not competent for the party calling him to prove them by other witnesses.' See, also, Cox v. Eayres, 55 Vt. 24, 45 Am. Rep. 583; Ellicott v. Pearl, 10 Pet. 412, 9 L.Ed. 475; Bullard v. Pearsall, 53 N.Y. 230; Adams v. Wheeler, 97 Mass. 67. I forbear entering into any further discussion of these authorities, because I think the question is foreclosed by the decisions of this court. In Darling v. Thompson, 108 Mich. at page 218, 65 N.W. 755, it is said: 'A party cannot impeach his own witness, but he may contradict him.' In the case of McGee v. Baumgartner, 121 Mich. 292, 80 N.W. 23, this precise question was involved and determined. I quote from that case: 'Defendant claimed to have been taken by surprise by the testimony of one of his own witnesses. He then submitted to her an affidavit, which she had made in writing, contradictory to her statements upon the stand. Defendant was permitted to put leading questions to her in regard to this affidavit. She admitted having made the affidavit, but said it was obtained from her by threats in the office of the defendant's attorneys. The witness who drew the affidavit was then called, and asked to state specifically the language used by the witness when the affidavit was prepared. Plaintiff's counsel objected for the reason that it was an attempt to impeach the defendant's own witness. The court at first sustained the objection, but finally permitted the witness to testify' that no threats, force or promises were used to induce the making of the affidavit. And it was decided that 'the court went far enough to permit the defendant to attack the credibility of his own witness.' It appears from the record in that case that the witness whom it was sought to contradict testified contrary to the statements contained in the affidavit referred to. The rejected testimony was offered for the express purpose of discrediting the witness, and the argument advanced in its support was the authority of Greenleaf's Evidence, heretofore referred to. McGee v. Baumgartner must, therefore, in my judgment, be regarded as an authority against the general proposition advanced in support of the ruling in question.

Can the ruling of the court be sustained on the ground that Pearl Arnold was a witness whom the people were compelled to call? They were compelled to call her because, in this state, it is the rule that the prosecution must call 'all the witnesses present at the transaction.' See Hurd v People, 25 Mich., at page 416; Maher v. People, 10 Mich. 225, 226, 81 Am. Dec. 781. This rule was recognized and enforced because this court determined it to be a part of the common law. The authorities for this determination were the decisions of Regina v. Chapman, 8 C. & P. 558, decided in 1838; Regina v. Holden, 8 C. & P. 606, also decided in 1838; the unreported case of Regina v. Orchard, referred to in the note to Regina v. Chapman; and the case of Regina v. Stroner, 1 C. & K. 650, decided in 1845. The Supreme Courts of some of our sister states have recognized this rule (State v. Magoon, 50 Vt., at pages 339, 340; Territory v. Hanna, 5 Mont. 248, 5 P. 252; Donaldson v. Commonwealth, 95 Pa., at page 24), though more of them have rejected it ( State v. Martin, 24 N. C., at pages 119, 120; State v. Smallwood, 75 N. C., at page 106; State v. Eaton, 75 Mo., at page 593; State v. Cain, 20 W.Va. 685-693; Selph v. State, 22 Fla. 542 et seq.; Keller v. State, 123 Ind. 110, 23 N.E. 1138, 18 Am. St. Rep. 318; Morrow v. State, 57 Miss. 836). Whether or not this rule which compels the people to call such witnesses permits their impeachment by showing prior contradictory statements has received the attention of the English courts. Rex v. Oldroyd, Russell & Ryan's Crown Cases, 88, was decided in 1805, before it had been determined that it was the duty of ...