People v. Gibson, 154.
| Decision Date | 27 February 1931 |
| Docket Number | No. 154.,154. |
| Parties | PEOPLE v. GIBSON. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Recorder's Court of Detroit; Sherman D. Callender, Judge.
Matthew Gibson was convicted of involuntary manslaughter, and he brings error.
Affirmed.
Argued before the Entire Bench.
J. H. M. Alexander, of Detroit, for appellant.
Harry S. Toy, Pros. Atty., and Philip J. Neudeck, Asst. Pros. Atty., both of Detroit, for the People.
Defendant herein, while driving an automobile on Garfield avenue in the city of Detroit, struck and killed a boy about fourteen years of age. Defendant was charged with involuntary manslaughter, but under Act 98, Pub. Acts of 1921 (3 Comp. Laws 1929, §§ 16743-16745), the jury found him guilty of the included lesser offense, negligent homicide. He reviews by writ of error.
Appellant first contends that the corpus deliciti was not established. We do not so find. On the contrary, the record contains testimony tending to establish every element of the offense charged.
Witnesses whose testimony disclosed that they were familiar with the smell of intoxicating liquor testified that immediately after the accident they detected such an odor on defendant's breath. At least one witness testified on cross-examination that he saw defendant walk ‘unsteady,’ and that he talked to defendant, and ‘he had a little difficulty in his speech’; and further: The information charges defendant was ‘under the influence of intoxicating liquor’ at the time of the homicide. The foregoing testimony of which appellant complains was competent and material.
Not all the res gestae witnesses were called, but the prosecuting attorney made a showing which disclosed inability to produce the others. In this connection the court charged the jury:
‘* * * That it is the duty of the prosecution in a homicide case to summon all the eyewitnesses to the crime, and if the prosecution fails to do so and the absence of such witnesses is not satisfactorily explained or excused, then you, as jurors, are at liberty to draw the inference, * * * that if such witnesses were produced their testimony would be unfavorable to the people's case.’
There is no disposition to depart from the established law of this state.
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People v. Pearson
...the decision." 1 Michigan Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education), p. 5-67.See People v. Gibson, 253 Mich. 476, 235 N.W. 225 (1931), and People v. Serra, supra, where the Court found that the people had exercised due diligence and found no error in gi......
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People v. Russell
...diligence is a matter to be determined by the trial court, subject to being overturned on appeal only for clear error. People v. Gibson (1931), 253 Mich. 476, 235 N.W. 225; People v. Hunley (1946), 313 Mich. 688, 21 N.W.2d 923; and People v. Kern, Supra. We find no such error Defendant in h......
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...at trial. They are: (1) When the prosecution makes a showing of due diligence in attempting to produce the witness, People v. Gibson, 253 Mich. 476, 235 N.W. 225 (1931) and People v. Kern, 6 Mich.App. 406, 149 N.W.2d 216 (2) When the testimony of the missing Res gestae witness would be mere......
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