People v. Fitzsimmons

• Citation: 30 N.W.2d 801,320 Mich. 116
• Decision Date: 16 February 1948
• Docket Number: No. 85.,85.
• Parties: PEOPLE v. FITZSIMMONS.
• Court: Michigan Supreme Court

320 Mich. 116

30 N.W.2d 801

PEOPLE

v.FITZSIMMONS.

No. 85.

Supreme Court of Michigan.

Feb. 16, 1948.

Appeal from Circuit Court, Ingham County; John Simpson, judge.

Floyd Fitzsimmons was convicted of offering and promising a bribe to a member of the House of Representatives of the State of Michigan, and he appeals.

Affirmed.

Before the Entire Bench, except CARR and DETHMERS, JJ.

Fred R. Walker, of Detroit (Wm. Henry Gallagher, of Detroit, of counsel), for appellant.

Edmund E. Shepherd, Sol. Gen., of Lansing, H. H. Warner, Victor C. Anderson and Daniel J. O'Hara, Asst. Attys. Gen., and Richard B. Foster, Sp. Asst. Pros. Atty., of Lansing, for appellee.

REID, Justice.

On February 1, 1945, defendant, the appellant herein, was convicted on trial before a jury of the offense of offering and promising a bribe to a member of the house of representatives of the State of Michigan. A notice of motion for a new trial was filed February 17, 1945, which motion was denied on March 20, 1945. Defendant on leave granted filed his claim of appeal, August 7, 1945. Defendant sets forth eight reasons or groups of reasons as a basis for his claim for a new trial, the first four of which are discussed at greater length than the others in the briefs filed by the parties and are as follows:

First, defendant claims he was deprived of his constitutional right to a fair and impartial trial by the denial of his two motions for continuance of the case. Defendant's claim in the two motions was that the mind of the public was so inflamed against him because of excitement occasioned by the murder of State senator Warren G. Hooper that it therefore would be impossible for him to obtain a fair and impartial trial.

Second, defendant claims the court erred in not granting a continuance to enable defendant to meet the change in date of the alleged offense, from February 20, 1941, to February 18, 1941.

Third, defendant claims error based upon the admitting into evidence of testimony that within a minute and a half or a few minutes after the occurrence of the claimed offense the principal witness related that occurrence to his fellow members of the house of representatives.

Fourth, defendant claims prejudicial error in the latitude of cross examination permitted to plaintiff concerning defendant's connection with senator Hooper, and about other matters claimed by defendant to be foreign to the issue and to be designed to cast suspicion on the character of defendant.

In respect to the first claim as to errors, defendant recites that he was arraigned on January 8, 1945, a plea of not guilty was entered for him, and the trial set for January 29 following. On January 11, 1945, senator Hooper was found shot to death in his car on a public highway, which occurrence was headlined in every daily newspaper in Michigan and broadcast on the radio. Pictures which had been taken at the scene of the crime were published, and stories of the search for the alleged murderers occupied front pages of daily newspapers in Michigan. Newspapers carried stories from which there were inferences to be drawn by the readers that defendant had something to do with Hooper's murder. On January 17, 1945, defendant filed a motion for a continuance of the trial, and claims that a campaign of false publicity was conducted against defendant by public officers. This motion was denied by Judge Carr, the circuit judge who had acted as grand juror. The motion was renewed on January 29, before the trial began, before Judge Simpson, the trial judge. Judge Simpson in disposing of the motion for a continuance among other things said,

‘I think that the people at the present time do not always take so seriously what they see in the paper, and do not pay any attention to it. At least, they don't have any fixed opinions in regard to it.

‘I feel it is a question entirely as to the jurors' answers here in court as to whether or not they can fairly and impartially try this case, or if they have such fixed opinion that they can't set it aside for the testimony that they shall hear here in court.

‘The motion is denied.’

Defendant claims that Judge Carr, having acted as grand juror, was disqualified to hear the motion for continuance and that his ruling was invalid and that Judge Simpson merely adopted that ruling, which action on the part of Judge Simpson defendant claims in therefore also invalid. However, as quoted above, Judge Simpson in reality determined to accept the results of the voir dire examination of jurors instead of merely adopting Judge Carr's ruling. A consideration of the answers given by jurors on their voir dire examination discloses that there was not prevalent such hostile opinion against defendant as claimed by him. A fair minded jury was obtained without excessive difficulty. The course adopted by Judge Simpson is not subject to valid objection. See People v. Swift, 172 Mich. 473, syllabus (2), 138 N.W. 662,People v. Connors, 251 Mich. 99, syllabus (5), 230 N.W. 931;People v. Raider, 256 Mich. 131, 134, 239 N.W. 387;People v. Schneider, 309 Mich. 158, syllabus (2), 14 N.W.2d 819. There is no occasion to determine whether Judge Carr was disqualified to pass upon the motion.

Defendant in support of his motion caused to be inserted into the record copies of various headlines from various papers published throughout the State, particularly three Detroit newspapers. It seems that the three Detroit papers had a circulation in Lansing and East Lansing, but no direct showing is made as to their circulation in other parts of Ingham county, in which county the trial was held, and none of the jurors on the trial of the case are shown to be of Lansing or East Lansing.

The record does not show any challenge to the array of jurors nor any motion for a change of venue. At the conclusion of the voir dire examination of jurors, Mr. Gore (defendant's attorney) announced, ‘The defendant is satisfied with the jury, your Honor.’ Under the entire record, we are satisfied that the trial judge properly disposed of the motion for adjournment that had been filed on January 17, 1945, and renewed on January 29, 1945.

Defendant's claim under the second claimed error in general is that February 20, 1941, was alleged in the information as the date of the offense and defendant was not apprized until at the close of the prosecution's opening statement that February 18, 1941, would be relied upon as the date of the commission of the offense. The warrant charged February 20, 1941, as the date. On preliminary examination witnesses for the prosecution. Gail Handy and Bert Storey, testified to February 20 and not February 18 as the date of the occurrences as to which their testimony was given. The date of the offense was alleged in the information with a videlicet, ‘heretofore, to-wit: on the 20th day of February, A. D. 1941.’ Defendant seasonably filed on January 17, 1945, notice of alibi with list of six witnesses to establish the alibi. Defendant claims that he was taken completely by surprise by the announcement of the prosecutor in his opening statement that the prosecution relied on February 18, 1941, as the date, and defendant thereupon immediately moved to discharge the jury, which motion was denied. Defendant also asked for a reasonable continuance to enable him to prepare to meet the changed date, which motion was also denied. Defendant was prepared by his witnesses to show that he was in Grand Rapids at the Democratic State convention on February 20, 1941, and his six witnesses would have testified to that fact. Defendant was forced into a trial, and as a witness testified that he was unable to say where he was on February 18, 1941, but that if he had gone to Chicago he went there to see Charles Thomas, who was sick and a friend of his, and further, that it was possible that he was in Lansing on February 18. Defendant in support of his claim of prejudice by reason of being forced to trial under the circumstances above described cites several cases from other jurisdictions and from 22 C.J.S., Criminal Law, § 498.

The prosecution claims that the date being alleged in the information under a videlicet where time is not of the essence of the offense, defendant is obliged to be on guard and to be ready to answer to a different date, citing 3 Comp.Laws 1929 § 17265 (Stat.Ann. § 28.991) as follows:

‘Sec. 51. Except insofar as time is an element of the offense charged, any allegation of the time of the commission of the offense, whether stated absolutely or under a videlicet, shall be sufficient to sustain proof of the charge at any time before or after the date or dates alleged, prior to the finding of the indictment or the filing of the complaint and within the period of limitations provided by law: Provided, That the court may on motion require the prosecution to state the time or identify the occasion as nearly as the circumstances will permit, to enable the accused to meet the charge.’

It is not made to appear that in the jurisdictions from which defendant cites decisions respecting change of date when defendant has given notice of alibi as to date first alleged, there are statutes similar to ours (hereinafter quoted) requiring a showing of actual prejudice by change of date on the part of the prosecution. In Michigan the defendant is, at least within reasonable bounds, required both by the presence of the videlicet in the information and by the express provision of the statute to take notice that the prosecution may, after all, offer proof of another date than that expressly alleged.

Plaintiff cites from People v. Whittemore, 230 Mich. 435, 437, 203 N.W. 87, 88:

‘The information alleged the crime was committed ‘on about the 25th day of August [A.D.], 1923,’ and defendant claims there was error in not confining the prosecution to that particular day. He claims he came to trial prepared to and did establish his presence elsewhere the day alleged, and he should not have been called on to...