People v. Gotshall
| Decision Date | 03 April 1900 |
| Citation | 82 N.W. 274,123 Mich. 474 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. GOTSHALL. |
Error to circuit court, Genesee county; Charles H. Wisner, Judge.
John H Gotshall was convicted of arson, and he brings error. Reversed.
Respondent who is nearly 70 years of age, was convicted of the crime of arson, and sentenced to the penitentiary for 10 years. He had lived in the city and town of Flint for 32 years. He was a merchant. The property destroyed was a barn, its contents and strawstacks around it, belonging to Lee & Aitken lawyers, residing in the city of Flint. Respondent also resided in the city. His home was 2 1/2 miles from the burned buildings, and his store 2 miles. The fire occurred September 30th, and was discovered about 7:30 p. m. An auction was held at the farm that day, the sale closing about 5 o'clock. The articles sold were across the road from the barn, and about 30 rods distant. Horses were tied around the barn, and people went in and around it during the day. The weather was hot, and it was very dry. Respondent was ill, and under the care of a physician, who advised him not to attend the sale. He, however, rode there with a neighbor, bought a few articles, and returned home about 5 o'clock. The property was insured in the Genesee Farmers' Mutual Fire Insurance Company, of which respondent had once been a member. He had difficulty with the company, withdrew from it, and litigation arose between them. In this litigation Mr. Lee was one of the attorneys for the company, and in his argument had severely criticised respondent. There was the usual amount of smoking by those attending the sale. There was testimony of threats made by the respondent against the company. The buildings were situated east of the city. The street--Kearsley street--by which they were reached was one of the principal thoroughfares leading in and out of the city.
Geer & Williams, for appellant.
Horace M. Oren, Atty. Gen., and Fred W. Brennan, Pros. Atty., for the People.
GRANT J. (after stating the facts).
1. It is the theory of the prosecution that respondent, after returning from the sale, and after the hour of 6:30, walked to the barn, set fire to it, and returned to his home along the public highway and streets of the city. The claimed motive for the crime is his animosity against the insurance company and Mr. Lee. It is strenuously urged by counsel for the respondent that the prosecution failed to establish the crime, and that the court should have directed an acquittal. The case for the prosecution rests entirely upon the testimony claimed to show that the respondent was seen going east on Kearsley street, towards the buildings, about 6:30, and about three blocks from Saginaw street, and that about the time the fire broke out he was seen going west on Kearsley street and on Court street, which runs parallel to Kearsley. The witness who testified to meeting him going east said: The streets had not been lighted. The witness did not see his face, and could, therefore, only recognize him by his clothes. He does not, however, state by what means he recognized him other than to tell how he was dressed. He said his clothes were dark. He could not tell whether his coat was long or short. Didn't pay attention enough to know whether it was an overcoat or a sack coat. He further testified, 'I have seen him wear the hat frequently.' This is all the testimony the witness gave in support of his identification. The place where this witness testified to meeting respondent was at least two miles from the fire. Two other witnesses testify to meeting respondent on Court street, on the west side of Gilky creek, going west into the city at a point nearly two miles from the fire. Their testimony as to the identification is not very satisfactory. The prosecution also gave testimony of a man coming west on Kearsley street near Gilky creek, who, it is claimed, was respondent. Two witnesses testify to meeting this man, and that he was about the same size as respondent. They saw the fire about the same time as did the witnesses who went out Court street, one of whom went on a bicycle. The witnesses on Kearsley street had a horse and buggy. If the person seen on Kearsley street was the same man who was seen on Court street, he must have traveled that distance--nearly or quite 3,000 feet--in an almost incredibly short space of time. Although this testimony of identification is very unsatisfactory, we do not think that we can hold that there was no evidence for the jury to act upon. The verdict, however, based upon this testimony, leads to a careful examination of the errors assigned.
2. Several witnesses were permitted to testify that they met a man on Kearsley and Court streets, none of whom placed him within a mile of the fire, and that he was about the height and size of respondent. This was allowed to go to the jury as evidence that respondent was seen going towards this farm before the fire, and returning from it after, and thus justify the conclusions that he set the fire. The value of such testimony will be seen from the cross-examination of one of the witnesses: To casual observers, unless one is so much above or below the ordinary height or size of men as to attract attention, persons, when seen at dusk, or in the evening, or in the light of electric lamps, would appear about the same size and height. When there are hundreds of others in the same community of about the same height and size as the person upon trial charged with a heinous crime, it is not competent to introduce, as affirmative evidence of identification, testimony of witnesses that they met a man in the public highway, in the evening, from one to two miles from the locus of the crime, of about the same size and height as the respondent. Such testimony is merely the expression of an opinion based upon the most casual observation, and cannot be used to form one of the most important and necessary links to convict a person of crime.
3. Two active young men, at the instance of the prosecution, started from a point in Kearsley street, where the witness testified he met respondent on the night of the fire, walked thence to the place of the fire, and back to respondent's home, and were allowed to testify that they made the trip in one hour and ten minutes. This was over the course it was claimed respondent took. This testimony was offered for the purpose of convincing the jury that respondent could have made this trip, entered and fired the barn, and returned home in the same time, or a few minutes longer. The injustice of this procedure is manifest. Had the prosecution selected two men of the age and condition of respondent, there would have been a show of propriety and fairness. There is no logic in the argument that, because these young men walked or ran from four to four and a half miles in an hour and ten minutes, therefore this old man, who was ill, accomplished the same feat.
4. Dr Howland, a physician of 28 years' practice in Flint, testified that he had been treating respondent for a month or more for a trouble of the bladder; that he had treated him that morning before he went to the sale, giving him medicine, and washing out his bladder; that he had urged him not to attend the sale; that he was in the respondent's store that evening, when they were closing up, at 6:25 or 6:30 o'clock, and saw the respondent there; that within half an hour, or perhaps a little longer, thereafter, he saw the fire, and that, in his opinion, respondent was physically incapable of walking to the place of the fire and back within the time claimed by the prosecution. On cross-examination he was asked how many times he had been a witness for respondent, to which he replied, 'Once.' The prosecuting attorney then continued: A similar course of cross-examination was pursued with another witness for the respondent named Kelly. One Mrs. Sweet, a witness for respondent, was formerly a Mrs. Chase, residing in the state of New York. On cross-examination she testified that her husband got a divorce from her in New York. The prosecutor then asked her, 'Don't you know that they cannot get a divorce in New York on any ground except adultery?' Objection to this question was sustained. One Boomer was cross-examined by the presecuting attorney as follows: ...
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