People v. Haggai

• Decision Date: 06 March 1952
• Docket Number: No. 93,93
• Citation: 332 Mich. 467,52 N.W.2d 186
• Parties: PEOPLE v. HAGGAI.
• Court: Michigan Supreme Court

Page 186

52 N.W.2d 186

332 Mich. 467

PEOPLE v. HAGGAI.

No. 93.

Supreme Court of Michigan.

March 6, 1952.

Bolt & Poel, Grand Rapids, for respondant and appellant.

Roger O. McMahon, Prosecuting Atty., Kent County, Berton Sevensma, Asst. Prosecuting Atty., Grand Rapids, for plaintiff and appellee.

Before the Entire Bench.

SHARPE, Justice.

Defendant was tried before a jury in the circuit court of Kent county on a charge of assault upon one Dorothy Haggai with intent to do great bodily harm less than the crime of murder. The jury returned a verdict of guilty as charged and subsequently defendant was sentenced for a term of years to the Michigan State Prison at Jackson.

The record shows that Dorothy Haggai, the people's principal witness, and David Haggai, the defendant, were divorced in January 1949; that Dorothy Haggai was given custody of their minor child; that on July 2, 1950, at about the hour of 4 a. m., Dorothy Haggai and Don Miles were at the home of Dorothy Haggai sleeping in one of the bedrooms and the child was sleeping in an adjoining room; that at this time defendant came to said home carrying a 22 caliber pistol, broke into the home and bedroom wherein Dorothy Haggai and Don Miles were sleeping; that David Haggai and his ex-wife began an argument about the payment of alimony; and while the argument was being continued in the living room, the pistol was fired and the bullet entered Dorothy Haggai's body.

Dorothy Haggai testified that defendant threatened to shoot her unless she would sign a paper releasing him from the payment of alimony; that for a period of about 30 to 40 minutes after defendant entered the home, he continued to use loud and profane language; that just a moment before the shooting occurred he said to her, 'Are you going to sign it or aren't you? to which she replied, 'No I am not;' and that then the pistol defendant was holding was fired and the bullet entered her body.

The defendant claims that after he had learned of his ex-wife's conduct and associations, he went to her home to investigate the same; that he was armed with a 22 caliber pistol for the purpose of protecting himself against said Don Miles, who was considerably larger than the defendant; that after gaining entrance and arousing his ex-wife and said Don Miles, considerable loud and profane talk ensued; that he and his ex-wife discussed the matter of the defendant's having the custody of the minor child because of the defendant's ex-wife's conduct; that after being there several minutes, said Dorothy Haggai started fighting and scuffling with said defendant, and at the same time said Don Miles approached and attempted to strike the respondent with a beer bottle which said Miles had in his hand; and that in the ensuing tussle, the gun was accidentally discharged. He denied he threatened to shoot or kill anybody that morning; and testified he at no time intended to do so; that he had said gun with him for the purpose of self protection; and that said gun was discharged accidentally while he and his ex-wife were scuffling.

Upon leave being granted, defendant appeals and urges that the court was in error in refusing to permit defendant's counsel to cross examine Dorothy Haggai concerning her knowledge of the date of Don Miles marriage. The court's reason for not permitting an answer to the question was that it was not material. Defendant urges that the purpose of asking the question was to test the credibility of the witness. We are unable to see how the answer to this question could be a test of credibility. At most, it would be a test of her knowledge when Don Miles was married. Neither the question nor the answer has any material bearing upon the issues involved in this appeal. It was not prejudicial error to deny defendant's counsel the right to cross examine upon this factual question.

Defendant also urges that the court was in error in refusing to permit Dorothy Haggai to make a drawing on a blackboard to show how the living room was laid out. The purpose of calling the witness was to have her testify as to facts within her knowledge. Her ability to draw on a blackboard was not in issue in this case. There was no abuse of discretion in refusing to permit her to make a blackboard drawing of the living room.

It is also urged that the court erred in refusing to permit defendant to testify that he was now friendly with his ex-wife. One of the issues in this case was defendant's intent at the time of the shooting. Whether defendant was friendly with his ex-wife 6 months later was not an issue. It was not error for the court to deny defendant the privilege of so testifying.

Section 768.29, C.L.1948, Stat.Ann. § 28.1052, provides: 'It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require. The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.'

It is also urged that the court erred by...