People v. Hess
| Decision Date | 27 February 1891 |
| Citation | 48 N.W. 181,85 Mich. 128 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. HESS. |
Certiorari to recorder's court of Detroit.
Const. Mich. art. 6, � 26, provides that How. St. Mich. � 7544, provides that "defendant in any criminal case shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him; nor shall the court permit any reference or comment to be made to or upon such neglect."
Walter Barlow and Charles D Joslyn, for defendant.
Charles W. Casgrain and Charles S. McDonald, for the People.
The defendant was convicted in the recorder's court of the city of Detroit of having on the 14th day of March, 1890, within the corporate limits of said city, at No. 258 Hastings street, unlawfully and willfully kept, carried on, and maintained a policy-shop, the same being a scheme for drawing and disposing of money. There was also a count in the warrant for aiding in keeping, carrying on, and maintaining such policy-shop; all this in violation of an ordinance of said city, being section 3, c. 64, p. 150, of the Revised Ordinances of said city of Detroit. The conviction is brought into this court for review by writ of certiorari. The provisions of the ordinance alleged to have been violated are as follows: "No person shall keep, carry on, or maintain, or aid in keeping, carrying on, or maintaining, any lottery, policy, pool, bucket-shop, board of trade, or any like scheme or place, for drawing or disposing of money, wheat, or other property, within the city." [1] It is provided in the charter of Detroit that "the common council * * * may also prohibit, prevent, and suppress all lotteries for the drawing or disposing of money, or any other property whatsoever, and punish all persons maintaining, directing, or managing the same, or aiding in the maintenance, direction, or management thereof." Charter 1886, � 49; Id. p. 83, 137.
The errors relied on are as follows: That the court erred in admitting certain papers and other things found by the officers at No. 258 Hastings street, on March 14, 1890, at the time the defendant was arrested. The testimony shows that when the officers visited No. 258 Hastings street, on the 14th of March, 1890, they found, up-stairs in the building the defendant, standing behind a counter, upon which were small pieces of paper in rows, with money upon them. There were two rooms. In the front room there were two colored men, two white men, and one colored woman. As one of the officers entered this room the colored woman went through into the other room. She had a piece of paper and 10 cents in her hand. In this room was Hess, standing behind the counter, with a stencil in his hand. The colored lady put the piece of paper and the 10 cents down upon the counter. She turned around, and saw the officer, and then walked out. The piece of paper that she laid down had figures upon it. In the same room were also two colored men and two colored women. These were sitting at a table, with pencils and paper in their hands. The officers scraped up the papers and the money on the counter. The money was in small change, and amounted in all to about three dollars. They also found a dream-book, which they also took away with them. They also arrested Hess, and took him to the police station, and locked him up. The next day a complaint was made against him, and the warrant issued upon which he was tried and convicted. Hess, at the time the officers were in the room, was asked what he was doing. He said: He was asked how long he had been running it, and he said, "About two weeks." He said he was not the proprietor, but was running it for a man by the name of Miller. The articles introduced in evidence were these pieces of paper and the dream book. The papers had figures upon them, and were evidently used in the game of policy, a description of which can be found in the case of People v. Elliott, 74 Mich., at pages 265, 266, 41 N.W. 916, and need not be given here. It is contended that the officers had no right to enter this building and take these papers without a search-warant duly procured, and that the seizure of the papers was illegal, and therefore they could not be used in evidence to convict respondent. It must be remembered that this was not a private house, but a place open to the public. The officers walked in peacefully and without objection, and found the parties therein engaged in an unlawful business. Under such circumstances they had an undoubted right to seize and take into their possession the papers and other things then being used in such unlawful business, and to retain the same, and to use them thereafter as evidence against the defendant. This is not a case of the home...
To continue reading
Request your trial