People v. Fleish, 69

• Decision Date: 14 June 1948
• Docket Number: No. 69,69
• Citation: 321 Mich. 443,32 N.W.2d 700
• Parties: PEOPLE v. FLEISH et al.
• Court: Michigan Supreme Court

321 Mich. 443

32 N.W.2d 700

PEOPLE

v.FLEISH et al.

No. 69

Supreme Court of Michigan.

June 14, 1948.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Harry Fleish, alias Harry Fleisher, alias Harry Fisher, Peter Aposteopolos, alias Pete Apostolapos, alias Pete Mahoney, Myron Selik, Samuel Fleish, alias Sammy Fleisher were convicted of common law conspiracy to kill and murder and they appeal.

Conviction of each of the defendants except that of Peter Aposteopolos, alias Pete Apostolapos, alias Pete Mahoney, affirmed, and, as to him, conviction set aside without a new trial.

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

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 plaintiff-appellee.

Edward H. Kennedy, Jr., of Detroit, for Harry Fleisher, Peter Aposteopolos, Mike Selik.

R. G. Leitch, of Battle Greek, for Sammy Fleisher.

NORTH, Justice.

On trial by jury the defendants herein were convicted of the charge of common law conspiracy to kill and murder one Warren G. Hooper. Each was sentenced to a prison term. Leave having been granted the defendants have appealed, and in support thereof have asserted a multiplicity of alleged errors. The return on the examination before the magistrate was filed May 16, 1945, and on the following day the information was filed and defendants arraigned. Defendant Samuel (Sammy) Fleisher stood mute and the other three pleaded not guilty. All of the defendants were released on bail on or before May 29, 1945. At the time the informationwas filed the names of 13 witnesses were endorsed thereon, and on June 18 the names of 10 additional witnesses were added on motion of the prosecution over the objection of defendants. The case was set for trial on July 16, 1945. Defendants' motion for a continuance filed July 13 was denied July 16, and the trial of the case commenced. The trial continued from day to day until July 31, 1945, excluding four days over week ends, at which time a verdict of guilty was rendered against each of the four defendants. Their motion for a new trial was denied.

As above noted the alleged conspiracy was to murder Warren G. Hooper, who was a state senator. There was pending in Ingham county an investigation by a socalled one man grand jury as to there having been graft or bribery incident to conduct of certain members of the state legislature and others. Senator Hooper had appeared as a witness before the grand jury on September 8, 1944, October 20, 1944, and on at least three occasions in November 1944. On December 2, 1944, a warrant was issued charging that Frank McKay, Floyd Fitzsimmons, William Green, and certain other persons, conspired among themselves and with others to corruptly influence the action of certain members of the state legislature relative to pending legislation. It was assumed, and seemed very probable, that Senator Hooper would be an important witness for the people at the examination and in the prosecution of that case. It is out of this circumstance that there arose the people's theory that a conspiracy to which the defendants were parties was entered into to prevent Senator Hooper from being a witness in behalf of the people by causing him to be murdered.

In February, 1945, one Alfred Kurner, who at the time was confined in the Wayne county jail awaiting trial for robbery armed, communicated by letter to the one man grand jury that he, Kurner, possessed some information concerning the circumstances surrounding the death of Senator Hooper. Kurner, having been granted immunity, gave testimony before the grand jury which seemingly involved one Sammy Abramowitz in connection with the charge in the instant case. Thereupon Abramowitz was taken into custody and after being detained for some 25 days and upon being granted immunity, gave testimony which in turn implicated one Henry Luks, who was thereupon taken into custody. Luks, having been granted immunity, gave testimony before the grand jury which implicated the defendants in the instant case and their arrest, trial and conviction followed.

In a large measure the alleged errors of which appellants complain have to do with claimed violations of their rights under the due process guaranteed by the United States Constitution and their rights guaranteed under state law. At the outset they complain that by the denial on July 16 of their motion for continuance to the next September term of court they were refused opportunity to properly prepare their defense. Under the record before us we find no merit to this contention. As above noted, the return of the examination before the magistrate was filed May 16, 1945, and the arraignment of defendants occurred on the following day. The trial did not commence until July 16, two months after defendants' arraignment. We are mindful that in the meantime three of defendants were taken into custody in another county where they were charged with having committed another wholly disassociated crime and substantial bail was required incident to their release from custody. Practically a month after conclusion of the trial in the instant case defendants filed their motion for a new trial, but we do not find in that motion defendants pointed out with any degree of particularity or definiteness wherein they were prejudiced by denial of their motion for a continuance. The record justifies the trial court's statement incident to denying defendants' motion for a continuance. He therein said: ‘The only reason you are asking for a continuance is that you cannot prepare. I realize that these defendants have been in different places in jail. * * * There is no reason why all the burden (of preparing for trial) should have been put on Mr. Leitch and Mr. Rodgers. They (defendants) have other attorneys in here. One of them just came in today, but they could have had them before. There was been plenty of time for them to make proper investigation to try this case. I don't think the Court is abusing his discretion one bit by denying the motion. They had every opportunity. We have gone to some expense in the county, calling extra jurors. We have one witness detained, that the county is put to expense on. It seems to me that putting it over further would not assist the defendants in their defense. This case is not more difficult than a lot of others, it is an ordinary conspiracy case. I can't see why you haven't had, in two months, time to get in touch with witnesses and be prepared.’

Even as late as the filing of a reply brief after the hearing in this Court, counsel still fail to point out specifically anything further which they might have done in behalf of defendants, and which probably would have led to a different result, had their motion to continue been granted. Instead, the following is a fair example of the indefinite character of this phase of defendants' claim, taken from their reply brief in this Court: ‘Time to really prepare for trial might well have enabled defense counsel to prove the real interest of prosecution witnesses in this matter, as well as the falsity of their testimony.’ As above indicated, we fail to find sufficient merit in this claim of defendants to justify a holding that the trial judge abused his discretionary power in denying defendants' motion for a continuance.

Defendants assert that they were denied their right to a fair trial because of (1) the prosecutor's belittling references to counsel for defendants, (2) improper statements by the prosecutor, (3) publication of accusations by the attorney general, and (4) failure to call res gestae witnesses.

Items (1), (2) and (3) of the above are quire in the same category and it was to this phase of the case that oral arguments of defendants' counsel in this Court were most strenously directed. As to the alleged belittling references and improper statements of the special prosecutor during the course of the trial, the record in the instant case cannot be said to be of a materially different character than that in the cases about to be cited and wherein we held there was no resulting prejudicial error. See People v. Burnstein, 261 Mich. 534, 246 N.W. 217;People v. DeLano, 318 Mich. 557, 28 N.W.2d 909 (Certiorari denied by United States Supreme Court 68 S.Ct. 1082);People v. Logie, Mich., 32 N.W.2d 458. At the 12 day trial of the instant case there was abundance of able counsel on each side. The trial was hotly contested, and from time to time irritating situations developed. Many frivolous objections and interruptions were interposed, rather caustic remarks and accusations came from both sides. It would serve no purpose to recite them here in detail. But it may be noted as bearing upon any adverse effect upon the jury that defendants' complaints of this character, while marshalled together in presenting this appeal, did not so occur at the trial, but instead they occurred at separate intervals during the trial which commenced July 16 and concluded 16 days later. Further, in a very large proportion of the instances when such matters as are now under consideration arose, the trial judge in response to motions of defendants' counsel struck from the record the objectionable matter and charged the jury to totally disregard it. In many instances now complained of no objection was made by defendants' counsel, and repeatedly in this long trial the circuit judge directed counsel for the respective parties to cease arguing among themselves and to proceed with the trial of the case. In the respects just noted we find no sufficient ground for reversal.

This section of appellants' brief also presents their contention that in his argument to the jury the special prosecutor made prejudicial statements. We quote from the first of these as presented in appellants' brief:

‘During his final argument, the prosecutor made this statement: ‘There is no...