People v. Germaine

• Decision Date: 25 September 1894
• Citation: 60 N.W. 44,101 Mich. 485
• Court: Michigan Supreme Court
• Parties: PEOPLE v. GERMAINE.

60 N.W. 44

101 Mich. 485

PEOPLE v. GERMAINE.

Supreme Court of Michigan

September 25, 1894

Error to circuit court, Grand Traverse county; Roscoe L. Corbett Judge.

William D. C. Germaine was convicted of assault with intent to murder, and appeals. Reversed.

Pratt & Davis, for appellant.

A. A Ellis, Atty. Gen., and W. H. Foster, Pros. Atty., for the People.

McGRATH C.J.

Respondent was charged with an assault upon one Ramsdell, with intent to commit the crime of murder. Ramsdell did not see the first shot fired, and the evidence as to who fired that shot was purely circumstantial. The rule that the prosecution cannot properly claim a conviction upon evidence which expressly or by implication shows but a part of the res gestae or whole transactions, if it appears that the evidence of the rest of the transaction is attainable, and that all the witnesses present at the transaction should be called for the prosecution, unless it appears that the testimony of those not called would be merely cumulative, should certainly be applied in a case like the present. The court instructed the jury that their verdict "must be either that the defendant is guilty of an assault with intent to commit the crime of murder, or that the defendant is guilty of committing an assault and battery, or an acquittal." All that occurred prior to the shooting was material, as determining the questions submitted, and the character of the act. The only witness called respecting these occurrences was the assaulted party. Maher v. People, 10 Mich. 212; Hurd v. People, 25 Mich. 415; Wellar v People, 30 Mich. 16; Thomas v. People, 39 Mich 309; People v. Davis, 52 Mich. 569, 18 N.W. 362; People v. Swetland, 77 Mich. 53, 43 N.W. 779; People v. Deitz, 86 Mich. 419, 49 N.W. 296. The duty of the prosecuting attorney is not discharged with the mere production of the witness. As is said in People v. Swetland "It is the duty of the prosecuting attorney to furnish all the evidence within his power bearing upon the issue of guilt or innocence, in relation to the main issue, or to give some good excuse for not doing so." In Thomas v. People, a saloonist fired a pistol through his door in trying to keep a disorderly crowd out. He was charged with an assault with intent to kill. His son and another man were the only persons in the saloon when the shot was fired. The stranger had been subpoenaed and called, but did not respond. This court said: ...