HOOKER
J.
The
defendant was convicted of burglary, upon a charge of
breaking and entering a farmer's barn and stealing a
double harness. The outline of the case for the prosecution
is that the barn door was found open in the morning, and the
harness gone. The yard gate was open, and tracks showing that
a buggy had stood near by, and afterwards gone south, were
distinguishable. The respondent and his companions were shown
to have hired a buggy in Bay City that night, about 12
midnight. The harness was found in possession of one Sackles
south of Saginaw, the next morning. He had traded a horse for
it, the morning that it was missed, to Burkhardt and Wines
the men who were with defendant in the buggy. The defendant
claimed that he had a slight acquaintance with one Martin
and that, a few days before the harness was stolen, he met
Martin, who told him that he had a harness to sell. Defendant
had no use for the harness, and the subject dropped. On July
9th defendant met Wines, who told him of a man who would
trade a horse for a harness, and defendant mentioned his talk
with Martin. On July 12th defendant again saw Martin, who
agreed to bring the harness to Burkhardt's barber shop
for inspection that evening, which he did about 10
o'clock. Defendant paid Martin $10 for it, $3 of which he
borrowed from Burkhardt, and $2 from a young woman named
Hattie Smith. The horse and buggy were then hired, and used for the purpose of getting and taking the
harness to Saginaw county, where it was traded for the horse.
Wines was taken because he alone knew where to find the man
with whom they were to trade. This horse was afterwards sold
to Boutell.
Burkhardt
who had been previously convicted, was sworn, and testified
to the facts claimed by the defense. Martin was not called by
the defense. During the examination of Burkhardt, the
following colloquy occurred: 'The Court: You have had the
services of the sheriff of the county at your disposal. Why
haven't you brought this Mr. Martin here? Mr. Simonson
We have endeavored to get Mr. Martin. The Court
Why haven't you taken a subpoena for him? Mr. Simonson:
We sent a man yesterday to try to find out where this Mr.
Martin was, in order to get a subpoena. We took the---- The
Court: You haven't sent the sheriff to look for him at
all. I have been so advised, and I think there is an order in
the case that the witnesses be subpoenaed at the expense of
the county. Mr. Simonson: We take an exception to the remarks
of the court. The Court: It looks to me like an imposition on
the court. Mr. Simonson: We take an exception to the remarks
of the court. The Court: Take all the exceptions you are a
mind to. Good faith in an attorney must be exacted in every
court of justice. I cannot allow you to pick up or look after
a straw man here, in order to tempt people to commit perjury.
Mr. Simonson: We take an exception to the remakrs of the
court. The Court: If there was any such man as Mr. Martin, he
can be produced or accounted for. You have had the assistance
of the whole state of Michigan at your back to do it, without
a cent of costs. Mr. Simonson: We take an exception to the
remarks of the court. The Court: It seems to me that you are
trifling with the court, and occupying its
time sillily and foolishly. Not only that, but you are
encouraging the commission of a crime. If there is no such
man as Martin, then the testimony is all false. Mr. Simonson:
We take an exception to the remarks of the court. Shall I go
on with the witness? The Court: You can do whatever you are a
mind to. Q. You came back after you took Miss Smith home, and
you found Mr. Daniels and O'Hare in front of your place?
A. Yes. Q. What did you do then, and what conversation did
you have? A. Mr. Daniels got up and leaned against a pole,
and I sat down, and we were talking, and I says: 'I
believe Mr. Vanderbilt has an opening at his place, and a
dance. I ought to go out, as he comes to my place, but I
guess I won't go. It will be too far to walk back.'
The Court: Where does Martin live? A. I couldn't tell
you. It seems to me that I saw the man once or twice previous
to that. The Court: You told us on the other trial that he
lived up at Portsmouth. A. That is what I learned from a man
in the jail. The Court: You haven't taken any subpoena
for him or sent the sheriff after him? A. I mentioned it to
be sheriff. Q. You mentioned it to your attorney? A. Yes;
that day when he came in I told Mr. Anneke about it. Mr.
Anneke was the first one I mentioned it to. Q. Why didn't
Mr. Simonson send for him? A. I never spoke to Mr. Simonson.
Q. You knew he was a necessary and material witness? A.
Certainly, we would like to have him. The Court: But you made
no effort to get him? A. I couldn't do anything. The
Court: You could ask the sheriff. A. I did tell the sheriff
over there. The Court: Instead of getting a man that you
thought, if he existed, and would tell the truth, could help
you out of this scrape, you saw fit, both of you, to ransack
every crib and bad place there is here to get some witness
that would tell a lie. It seems to me that has been the
practice, instead of the...
