People v. Evans

• Decision Date: 01 November 1888
• Citation: 40 N.W. 473,72 Mich. 367
• Court: Michigan Supreme Court
• Parties: PEOPLE v. EVANS.

40 N.W. 473

72 Mich. 367

PEOPLE v. EVANS.

Supreme Court of Michigan

November 1, 1888

Error to circuit court, Alcona county; WILLIAM H. SIMPSON, Judge. Moses Taggart, Atty. Gen., for the People.

LONG J.

The respondent is charged with the crime of rape, committed upon his daughter, Rose Evans, on September 20, 1885, at Harrisville, Alcona county; and upon his trial in the circuit court for said county, April 5, 1888, was found guilty of the offense charged. Upon his arraignment in the circuit court under the information then filed, he interposed a plea in abatement, which was overruled by the court. The record shows the following facts as to what took place in court after such plea was overruled. February 14, 1888, the respondent being present, and trial ordered, thereupon came a jury, etc., who were duly impaneled, tried, and sworn, etc., February 15th the jury heretofore impaneled in this cause came and sat together; and thereupon, on motion of the court, and by consent of counsel, cause adjourned until tomorrow morning at 9 o'clock. February 16th, the jury impaneled in this cause came and sat together, and upon motion of counsel for respondent, and upon consent of counsel for the people, the further proceedings were postponed until April 4, 1888, at 9 o'clock in the forenoon. April 4th, the jury heretofore impaneled in this cause came and sat together, and heard the proofs and allegations of the parties in part. April 5, 1888 the jury found the respondent guilty. It further appears that on the 14th of February, 1888, when the cause was called for trial, and jury impaneled, the prosecuting attorney opened his case to the jury by making a statement of the people's case, and what he expected and intended to prove by the witnesses; at the conclusion of which statement he called as a witness for the people Rose Evans, the daughter of the respondent. Counsel for the respondent made objection to her being sworn, on the ground that her name was not indorsed on the information. The prosecuting attorney then stated to the court: "It seems her name is not on the information, and I did not know it until now, but I knew the case could not proceed without her testimony." The prosecuting attorney was permitted to indorse the name of the witness on the information, at the same time the court stating to the counsel for respondent: "If the defendant desires time to meet any surprise, if there is any, he can have it." Counsel for respondent then asked the court that the cause be continued until the next term. This the court refused, but continued the case until April 4, 1888. It does not appear from this part of the record that respondent's counsel consented to have the case set for this time, though the order entered in the court journal shows that this adjournment or continuance was had no motion of respondent's counsel, and by consent of the prosecuting attorney. It is now contended by counsel for respondent that he urged upon the court that the jury be discharged, and the cause continued over the term, and we think the record bears out this statement. Time was asked by respondent's counsel, but it does not appear he had any voice in affixing the date to which it was continued, or that the jury then impaneled was to return at that time and hear the case. This was fixed by the court, and the court then stating to the jury: "This case will be adjourned until the 4th day of April, and you will abstain from conversing with any one, or listening to any one conversing about the case." It also appears that, at the adjournment had the right before, the court had also cautioned the jury, in which the court said. "If any one attempts to converse with the jury, you will report to me about it. If any person comes around, and proposes to converse with them, or seeks a conversation with them about it, you will report the name of that person to me." On the 4th of April, after the jury had returned into court, the counsel for respondent called the attention of the court to the journal entry of February 16th, and asked that it be corrected, as the adjournment was not on his motion. The court refused to make the correction, and ordered that the entry be left to stand as made.

Section 9549, How. St. provides that the prosecuting attorney shall indorse on the information the names of the witnesses known to him at the time of filing the same; and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him. In the present case it appears that the name of the witness was known by the prosecuting attorney at the time of the filing of the information, but that her name was not indorsed, through inadvertence. Some discretion is left with the court, under this statute, in reference to the indorsement of names of witnesses on the information; and we think, under the circumstances here stated, the court very properly allowed the prosecuting attorney to make the indorsement. The witness had been produced on the examination before the justice, and there gave testimony. She was the most important witness for the people in the case, and that fact must have been well known to respondent's counsel. In permitting the indorsement of this name on the information, however, the court was bound to take care of the rights of the respondent; and, if reasonable claim was made that he was not prepared to meet the testimony expected to be given by the witness whose name was so indorsed, the court should have given reasonable time to the respondent to prepare his defense, and we think the case should have been continued over the term, as requested by respondent's counsel. The court granted a continuance, but, without the consent of the counsel for respondent, put the trial down for April 4th, and directed the same jury to return at that time, and hear the cause. What might have been anticipated and expected from the excited state of feelings in that community, naturally growing out of the crime charged, seems to have followed. A father was charged with rape upon his own daughter, a girl then only about 14 years of age. It is a charge which in any community would stir up and arouse, not only comment, but a feeling of hostility to a person charged with so heinous a crime. Good men and good women would naturally feel that no punishment could be meted out, to such an unnatural father, adequate to the crime; and though the man may have been ever so well known in the community, and have borne ever so good a character for honesty and virtue, yet a charge made by his own daughter would tend strongly to impress people in any community with the truth of the charge. People would talk about it, and necessarily these things would come to the ears of the jury, separated and returning to their homes, and there remaining from February 16th to April 4th,-a period of nearly six weeks. Perhaps there is no crime known to the law that would arouse more feeling and comment in a community than the one here charged.

After the jury had returned to their seats in the jury-box, on April 4, 1888, counsel for respondent again asked the court that the cause be continued over the term, and the cause then tried before a jury to be impaneled. This the court refused. Counsel for respondent then asked that he have leave to challenge certain of the jurors. Judge Kelley, who then appeared in the case as counsel for the people, stated "I think that, owing to the unusual length of time since the adjournment in this case, that the respondent should have the right to challenge any juror for cause." The prosecuting attorney then said: "The jury has been sworn, but we will waive that." By the Court. "You can challenge for cause any juror." Counsel for respondent was then permitted to examine Mr. McClatchey, one of the jurors; and from such examination it appears that he had heard some talk about the case on both sides; that he could not tell just what talk was had, he had heard so many stories; that he had heard people talking about the public sentiment about the case,-about the feeling in the community; that the people were talking about the state of public sentiment in the community, but that he took no part in these conversations, and did not think he had been influenced by them. Respondent's counsel then challenged the juror for cause. The court refused the challenge, and overruled the motion to discharge the juror from the panel. Mr. Miller, one of the jurors, was then examined by the counsel for respondent; and asked: " Question. Do you know George H. Lee, of Alcona township? Answer. Yes, sir. Q. Did you not state in George H. Lee's presence, since the last adjournment of this case, that you believed that Evans was guilty? A. No, sir." Counsel for respondent then offered to show by Mr. Lee, who was present in court, that Mr. Miller, the juror, stated in his presence, since the adjournment of the case, that he believed Evans guilty. " By the Court. I shall not permit it." These rulings of the court were all excepted to by respondent's counsel, and error assigned thereon. We think the court erred in not permitting the case to be continued over the term, when requested by counsel; and in continuing it for six weeks, and recalling the same jury for its trial, under the circumstances. Having recalled the jury, and permitted respondent's counsel to challenge for cause, it was error not to excuse the juror McClatchey. The respondent had a right of trial by an impartial jury, and during the progress of the trial he had a right to have all matters that could in any way tend to influence or bias their judgment excluded from them. The juror himself confesses that people were talking in his...