People v. Harvey

• Citation: 220 Mich. 226,189 N.W. 925
• Decision Date: 02 October 1922
• Docket Number: No. 114.,114.
• Parties: PEOPLE v. HARVEY.
• Court: Supreme Court of Michigan

220 Mich. 226

189 N.W. 925

PEOPLE

v.HARVEY.

No. 114.

Supreme Court of Michigan.

Oct. 2, 1922.

Error to Circuit Court, Muskegon County; John Vanderwerp, Judge.

George S. Harvey was convicted of statutory rape, and he brings error. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.F. E. Wetmore, of Hart, for appellant.

Merlin Wiley, Atty. Gen., and Harry W. Jackson, Pros, Atty., and R. Glen Dunn, Asst. Pros. Atty., both of Muskegon, for the People.

McDONALD, J.

The defendant was convicted on an information charging him with statutory rape on his sister, Alice Harvey, in Muskegon county, Mich. On a previous conviction, this court, in 212 Mich. 393, 180 N. W. 372, set aside the verdict and ordered a new trial.

When the case was first heard, Alice Harvey was a witness on the part of the people, and testified to acts of intercourse with the defendant. When the second trial came on it was found that a brother of the defendant had taken Alice from the Children's Home in Muskegon county, to the state of New Hampshire, and that the prosecuting attorney was unable to secure her attendance as a witness. Over objection of counsel, her testimony as given on the former trial was read to the jury by Fred M. Anderson, the official stenographer of the court. Counsel for the defendant insists that this was a violation of his constitutional right to the confronted with the witnesses against him.

The execptions to the rule as to the right of confrontation are stated by Justice Cooley as follows:

‘If there were a former trial on which he [witness] was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insance or sick and unable to testify, or has been summoned but appears to have been kept away by the apposite party.’ Cooley on Constitutional Limitations, 7th Ed. p. 451, or 4th Ed. p. 318.

It is counsel's claim that Alice Harvey was not deceased, insance, nor sick and unable to testify, and was not kept away by the opposite party, and that, therefore, this is not any one of the exceptions pointed out by Justice Cooley.

This precise question was before this court in People v. Schepps, 217 Mich. 406, 186 N. W. 508, where the general rule and exceptions are interestigly discussed by Mr. Justice Steere, and the conclusion there reached disposes of the question adversely to counsel's contention.

In the instant case, there is substantially no dispute as to the circumstances under which the witness was taken from the jurisdiction of the court. Nor as to the efforts made by the prosecuting attorney to secure her attendance at the second trial. Without the knowledge of the prosecutor, she was taken from the Children's Home in Muskegon, by defendant's brother, and removed to relatives somewhere in New Hampshire. The prosecuting attorney was a witness, and testified that when he learned that she had been removed from the state, he made diligent efforts to locate her, but was unable to do so; that he took out a subpoena and placed it in the hands of the sheriff, and did everything that could be done to secure her attendance as a witness before the jury. The circuit judge was careful to ascertain these facts before permitting the testimony taken on the former trial to be used. He had before him the fact that, despite the diligence of the prosecuting attorney, the witness could not be produced in person to testify before the jury, and that on the former trial, where the accusation was the same, she was fully cross-examined by defendant's counsel. Because of these facts the following conclusion by Justice Steere in People v. Schepps, supra, is applicable:

‘In the instant case we find that important fact that the witness could not be produced to testify before the jury, established without fault of the prosecution as positively as though she were ill, insane, or dead. In this very case, upon the same issue at the preliminary hearing, defendant was confronted by the witness and by his counsel availed himself of the opportunity for full cross-examination. Under the circumstances shown, his right to be confronted by the...