People v. Hendrickson
| Decision Date | 30 April 1884 |
| Citation | 19 N.W. 169,53 Mich. 525 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. HENDRICKSON. |
In a prosecution for adultery evidence of familarity and intimacy between the parties is competent and admissible as long as they may be regarded as continuous with the acts complained of, but those occurring two years before the criminal act charged are too remote, and to admit evidence of them is error.
A party to the act, in a prosecution for adultery, may be a witness for the people, or for the defendant; but it is error for a court to charge that, if the defendant does not call the other party as a witness, it will be taken as a circumstance against him, there being no proof that the defendant knew of the other party's whereabouts.
Error to Berrien.
J.J. Van Riper, for the People.
Geo. S Clapp, for defendant and appellant.
The defendant was charged with the crime of adultery, committed with one Varnella Smith, on the twenty-first day of August 1883, was tried at the Berrien circuit, and convicted and sentenced to two years imprisonment. A large number of exceptions were taken on the trial, to the rulings and charge of the court, upon 29 of which the defendant assigned error in disposing of the case, however, but few of them need be considered.
On the trial the prosecuting attorney was permitted to make proof of acts of familiarity and intimacy between the defendant and Mrs. Smith, which occurred over two years before the prosecution was commenced. Such acts, within a reasonable time before the acts complained of, and also occurring very soon thereafter, so long as they may be regarded as continuous, are competent and admissible testimony; but those occurring two years before the criminal act charged must be held too remote and error to admit them. The defendant's motion to strike out this testimony should have been granted. People v. Davis, 18 N.W. 362; People v Jenness, 5 Mich. 305.
Mrs. Smith was a competent witness in the case for the people as well as the defendant. Parsons v. People, 21 Mich. 512. Of course she could not be compelled to answer if she declined upon the statutory ground. She was not sworn upon either side, and the record does not show that she was in the state at the time of the trial.
The court charged the jury that Mrs. Smith could not be subpoenaed and testify to her guilt, "but the defendant might have subpoenaed her if he was innocent, and she was...
To continue reading
Request your trial