People v. Fuhrman

• Decision Date: 22 January 1895
• Court: Michigan Supreme Court
• Parties: PEOPLE v. FUHRMAN ET AL.

61 N.W. 865

103 Mich. 593

PEOPLE v. FUHRMAN ET AL.

Supreme Court of Michigan

January 22, 1895

Error to circuit court, Alpena county; Robert J. Kelley, Judge.

August Fuhrman and others were convicted of murder, and bring error. Affirmed.

A. A. Ellis, Atty. Gen., and James McNamara, Pros. Atty., for the People.

James D. Turnbull, for defendants.

McGRATH C.J.

Defendants were convicted of murder. The venue was changed at the instance of the people from Presque Isle county to Alpena county, and error is assigned upon the order of removal. The point is ruled by People v. Peterson, 93 Mich. 27 52 N.W. 1039.

Upon defendants' challenge to the array of jurors upon the ground that an excessive number of jurors had been returned from certain townships the court ordered the clerk to reduce the list by striking off all names below the number appearing thereon to which each township was entitled, directed the supervisors and aldermen of the several wards of the city of Alpena to forthwith make return of a list of persons qualified to serve as jurors, and afterwards ordered a drawing from the list so returned. Defendants then made a second challenge to the array, alleging: "(1) That the court had no authority to direct the striking off of the said names from the lists returned from said townships etc.; (2) that the court had no power to order the supervisors and aldermen to make the selection; (3) that the supervisors and aldermen had no power to make said selection; (4) that the court had no authority to order the drawing and summoning of said jury of 24 men; (5) that the names so selected and returned from city of Alpena were selected and returned for the very purpose of the trial of this case, and under improper influences and circumstances," etc. As to the first objection, the course pursued was that suggested in Hewitt v. Circuit Judge, 71 Mich. 287, 296, 39 N.W. 56. As to the fifth objection, the order of the court, and what transpired at the time, expressly negative the allegations made. As to the other objections, the statute provides that the supervisor or assessors, as the case may be, and aldermen of each ward or assessment district in any city, shall make a list, etc. 2 How. St. � 7554. The city of Alpena elects a comptroller, who is its assessing officer, and each ward elects two aldermen and one supervisor. The latter exercises the power of supervisors in townships, except as otherwise provided in the act. It is urged that under the charter of the city of Alpena neither the supervisors nor aldermen are assessors or members of the board of review; that the comptroller of the city is the assessing officer, and that the statute (section 7554) contemplates that an assessing officer should assist in making the list. Section 7555 would seem to indicate that the lists are to be made by officers having some knowledge of the persons whose names are listed. The supervisor or assessor and aldermen of each ward are named, the contemplation being that the listing shall be done by local officers. In Hewitt v. Circuit Judge, supra, the charter of the city of East Saginaw created the office of assessor, and required that officer to make and return jury lists, and the court held that there was nothing compulsory upon the legislature as to how or in what manner lawful jurors' names shall be returned to the box, and that the general law was of no higher or greater authority than any other enactment upon that subject. We think that the proper officers under the statute were designated by the court to return the lists. There is no force in the objection that the court had no power to order the return of the lists. The statute provides that whenever, for any cause, jurors shall not have been drawn or summoned to attend any circuit court such court may, in its discretion, order a sufficient number to be drawn and summoned, and that the court may direct from which townships or districts such jurors shall be drawn. 2 How. St. � 7578. It was held in Thomas v. People, 39 Mich. 309, that the time for returning the lists was of no importance to litigants. Nor is the manner in which the lists are obtained by the clerk important, if procured from the proper source, and through the proper channels. The order of the court recited that by reason of the neglect of the supervisors and aldermen of the several wards of the city of Alpena no names of persons qualified to serve as jurors had been legally returned from that city, and, "there being a large number of civil and criminal cases for trial by jury, it is ordered," etc. Not having, prior to that time, returned the proper lists, the duty was a continuing one, and it was immaterial whether they made the return voluntarily, upon request, or upon the order of the court.

The next contention is that the court erred in directing separate trials. The matter, under the statute, was in the discretion of the trial court. 2 How. St. � 9573; Stroh v. Hinchman, 37 Mich. 492.

Objection is made to the participation of the attorney general and Mr James McNamara in the prosecution. The attorney general appeared at the request of the governor, under the statute (1 How. St. � 286). Mr. McNamara was at the time the prosecuting attorney of Alpena county. Prior to the removal of the cause he had been appointed by the circuit court of Presque Isle county to assist in the prosecution, and the board of...