People v. Fleisher

Decision Date04 October 1948
Docket NumberNo. 67.,67.
Citation322 Mich. 474,34 N.W.2d 15
PartiesPEOPLE v. FLEISHER et al.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Oakland County; George B. Hartrick, judge.

Harry Fleisher and others were convicted of robbery while armed with a dangerous weapon, and they appeal.

Affirmed.

See also 34 N.W.2d 22.

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

Edward H. Kennedy, Jr., of Detroit, for defendants and appellants Harry Fleisher and Myron Selik.

Howard I. Bond, of Pontiac, for defendant and appellant Pete Mahoney.

William F. Dohany, of Pontiac, for defendant and appellant William W. Davidson.

Edmund E. Shepherd, Sol. Gen., of Lansing, H. H. Warner and Daniel J. O'Hara Asst. Attys. Gen., and Lewis R. Bebout, Sp. Asst. Pros. Atty., of Rochester, for plaintiff-appellee.

NORTH, Justice.

This appeal is in a case in which defendants were charged with robbery while armed with dangerous weapons. They were convicted by a jury and each defendant was sentenced for a term of years in the State's prison of southern Michigan. Motions for new trials were denied. Defendant Chivas has taken a separate appeal, which is not involved in our decision herein.

Between 3 A.M. and 4 A.M., December 2, 1944, a gambling establishment, the Aristocrat Club, operated by James Dades in Pontiac, Oakland county, was robbed. Henry Luks and Sam Abramowitz, the people's principal witnesses, having been granted immunity when they appeared as witnesses in a one-man grand jury proceeding, testified at the trial of this case that they together with defendants herein committed this robbery. The people's testimony in substance was that about 1 o'clock on the night of the robbery Luks, Abramowitz and the defendants herein met at a coffee house operated by defendant Mahoney in Detroit and there planned the robbery. The proceeds of the crime, which were thought would be not less than $15,000, were to be divided between Luks, Abramowitz, Davidson and Chivas. As to Fleisher (whose correct name is Fleish), Mahoney and Selik, it was thought the robbery would put Dades out of business and the three defendants last above named would be enabled to take over Dades' place of business where gambling was carried on.

The people claim that preparatory to making the trip from Detroit to Pontiac, through one Hyman Niskar who occupied a room in Selik's apartment, the use was obtained of an automobile belonging to Martin Eisner, who was one of the people's witnesses; that five of the seven men participating in the robbery drove to Pontiac in the Eisner car, and that Mahoney and Chivas, carrying three revolvers, went to Pontiac in Mahoney's automobile, but there is also testimony that six of the men rode in the Eisner car and Mahoney went alone in his car; that the two cars arrived in Pontiac about the same time and finally were parked across the street from the building where Dades' club occupied the second floor. Further that Chivas, who appears to have had access to the club, went in but shortly he returned to one of the automobiles and reported that only a few persons were present in the establishment and that prospects were not good for obtaining substantial results. None-the-less it was decided he should return to the club and be instrumental in enabling others of the party to gain admission. Thereupon Luks, Abramowitz and Davidson, each being provided with a 38 revolver from Mahoney's automobile, made an unsuccessful attempt to gain admission to Dades' place. But shortly thereafter they made a second trip to the entrance door where, according to the people's testimony, after Luks had gained admission to the club, Abramowitz smashed the glass in the entrance door, reached in, unlocked the door, and Davidson entered the club. In breaking the glass Abramowitz was seriously cut on his arms and wrists. He bled so profusely that shortly he hurried back to the Eisner car, got into it, talked briefly with occupants, and then, as the people claim, went to Mahoney's car and was driven back to Detroit by Mahoney. However, defendants claim that Luks with the Eisner car in which blood stains were later found, drove Abramowitz back to Detroit.

It is the theory and testimony of appellants that none of them had anything to do with or any knowledge of the robbery. To that effect testimony was given by Fleisher, Selik and Mahoney. Defendants claim the crime was committed by Luks, Abramowitz and some other accomplice. Admittedly a robbery was accomplished and resulted in the perpetrators obtaining somewhere from $600 to $1,600, as shown by conflicting testimony. Other attendant circumstances will be noted later herein, and also some other details appear in Mr. Justice Sharpe's opinion in People v. Chivas, Mich., 34 N.W.2d 22.

We first give consideration to the contention seriously urged in behalf of defendant Selik that prejudicial error resulted from denial of his motion for a continuance. On the examination, concluded June 22, 1945, Selik was held for trial. He was arraigned August 30 and pleaded not guilty. On that date it was ordered that the ‘cause be marked ready for trial October 23, 1945.’ On October 19 Selik's motion for continuance was served on the prosecuting attorney and it was heard October 22, 1945. In effect it advised the court and counsel that in his defense Selik claimed that at the time this robbery was committed in Pontiac, Selik was at home with his wife in Detroit, and that in support of such alibi (and for that purpose only), the testimony of his wife was essential, but owing to her illness it was claimed she was not able to appear in court as a witness and would not be for at least 30 days. The record discloses that Mrs. Selik was ill with a bleeding duodenal ulcer complicated by intestinal bleeding; that she was hospitalized August 26, 1945; that an exploratory operation was performed September 10, that she was confined in the hospital until September 20, that after her discharge from the hospital she was confined to her home and her condition slightly improved, that her attending physician was of the opinion that she was in no condition to appear as a witness * * * and to do so would aggravate her condition to such a degree that it would be against the advice of said physician,’ and that the physician did not have an opinion as to when the witness could appear in court but in his judgment it would be not less than 30 days.

In a very large measure, under the circumstances of the instant case, the trial judge was vested with discretionary power in granting or denying a continuance. People v. Jackzo, 206 Mich. 183, 190, 172 N.W. 557. In denying Selik's motion for a continuance the trial judge was not guilty of an abuse of discretion. The instant case involved not only the trial of Selik but of the four other defendants. The state had made extensive preparations for the trial on October 23, the date for trial which the court had fixed as far back as August 30. This motion for continuance was not made until October 19, and heard on October 22, the day before the set trial date. Obviously Selik had knowledge of his wife's illness all the time intervening since August 26, on which date she was hospitalized. Also, he knew that his wife was his only available alibi witness who could corroborate his testimony in that respect. That he did not advise his counsel of Mrs. Selik's condition until just shortly prior to the service of the motion for continuance ought not to enable Selik to take advantage of his self-made situation with which he confronted the trial court. Further, in a strict sense Selik was not entitled to have his wife's testimony at the trial as an alibi witness, because he failed to comply with the statute which provides that when a defendant in a crimianl case not cognizable by a justice of the peace proposes to offer the testimony of alibi witnesses, ‘such defendant shall at the time of arraignment or within ten (10) days thereafter but not less than four (4) days before the trial of such cause file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to claim such defense and * * * such notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense.’ 3 Comp.Laws 1929, § 17313, Stat.Ann. § 28.1043. No attempt was made by Selik or his counsel to comply with the above quoted statute. We are not prepared, under the noted circumstances, to accept the contention that Selik's motion for continuance which was not filed until October 19, resulted in substantial compliance with the statutory notice required incident to the defense of an alibi.

The record also discloses that during the hearing of Selik's motion for continuance, the prosecuting attorney consented that the deposition of Selik's wife might be taken during the course of the trial, which obviously was to be of some considerable length. With some interveningintervals the trial of the case was in progress until December 7, 1945. Some showing was made that Mrs. Selik's condition was such that she should not be subjected to the strain of even taking a deposition. Such showing was not overly convincing, notwithstanding in a letter dated November 29, 1945, addressed to the trial judge by Mrs. Selik's attending physician he stated: ‘This is to certify that I consider Mrs. Myron Selik to be too ill to be subjected to any cross-examination.’ No effort was made to take the deposition of Mrs. Selik and it may be noted that had she testified, or her deposition been taken, her testimony would have been only cumulative of that given at the trial by Selik. Without referring to further attendant circumstances we conclude that the trial judge was not in error in denying Selik's motion for a continuance, nor did such denial result in Selik being deprived of due process of law. In so holding we are not unmindful, as pointed out in the reply brief, that after the court's...

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15 cases
  • People v. Merritt
    • United States
    • Michigan Supreme Court
    • 29 Enero 1976
    ...judge has discretion to determine whether to grant a continuance instead of applying the preclusion sanction. People v. Fleisher, 322 Mich. 474, 480--481, 34 N.W.2d 15 (1948). Most cases however, dealing with the question of discretion in applying the alibi notice statute have focused on th......
  • People v. Williams
    • United States
    • Michigan Supreme Court
    • 25 Febrero 1972
    ...is not entitled to substitute counsel indefinitely and thereby continue to thwart the fair administration of justice. People v. Fleisher (1948), 322 Mich. 474, 34 N.W.2d 15. The record reveals that defendant was ably represented at trial and was not prejudiced by the trial court's denial of......
  • People v. Dermartzex
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    • Court of Appeal of Michigan — District of US
    • 10 Diciembre 1970
    ...that the granting of a continuance in a criminal case rests within the sound discretion of the trial court. People v. Fleisher (1948), 322 Mich. 474, 34 N.W.2d 15; People v. Jackzo (1919), 206 Mich. 183, 190, 172 N.W. 557; and, also see, GRC 1963, 503. Under the facts in this case, the tria......
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    ...Defendant was not prejudiced because the charge given covered the issue more succinctly than did the requests. See People v. Fleisher, 322 Mich. 474, 34 N.W.2d 15. On the trial of the case certain relatives of defendant and Charles testified that the latter had made statements to them indic......
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