People v. Hill

• Citation: 258 Mich. 79,241 N.W. 873
• Decision Date: 04 April 1932
• Docket Number: No. 200.,200.
• Parties: PEOPLE v. HILL.
• Court: Supreme Court of Michigan

258 Mich. 79

241 N.W. 873

PEOPLE

v.HILL.

No. 200.

Supreme Court of Michigan.

April 4, 1932.

Appeal from Circuit Court, Oakland County; Glenn C. Gillespie, Judge.

Alfred Hill was convicted of murder in the second degree, and he appeals.

Reversed, and new trial ordered.

Argued before the Entire Bench.

Oliver M. Green, of Pontiac, for appellant.

Paul W. Voorhies, Atty. Gen., Clarence L. Smith, Pros. Atty., and Edward J. Fallon, Asst. Pros. Atty., both of Pontiac, for the People.

POTTER, J.

Defendant, a resident of Pontiac, Oakland county, was, on March 18, 1931, charged in a complaint made by Joe Palace, with the murder of Richard Coffee, at Pontiac, on November 27, 1930. A warrant was issued by the justice of the peace before whom complaint was made and defendant arrested. At the April, 1931, term of court, defendant was arraigned, an information filed by the prosecuting attorney against him, he stood mute, and a plea of not guilty was entered by order of the court. The case was brought on for trial in the circuit court, May 8, 1931. Before calling a jury, defendant moved for an order requiring the prosecuting attorney to indorse upon the information the witnesses named in the motion, whom defendant, by his attorney, offered to prove were known to the prosecuting attorney, as well as their addresses and what they would testify to. This motion the court passed with a remark, ‘I don't know anything about what witnesses are to be produced yet, so I am unable to rule on the motion.’ At this time there was before the court the information with the names of witnesses indorsed thereon, the motion of defendant naming the witnesses, defendant's offer to prove their residence, what they would testify to, and knowledge of the prosecuting attorney of the facts to be proved by them. A jury was then impaneled. The prosecuting attorney and defendant's counsel made opening statements.

1. On the examination of the witness Heywood Gullotte, it appeared he had made a written statement, and a carbon copy of this was presented to him, and he identified it as such and stated it contained the facts as witness had stated them to defendant's counsel. Defendant offered the paper in evidence. The prosecuting attorney objected to the offer because the question was a repetition. The court rejected the offer because the paper was not properly identified and sufficient foundation had not been laid for its introduction. We think there was no error in this ruling of the court.

2. Was there error in refusing to order the prosecuting attorney to indorse the names of all the eyewitnesses known to the people on the information, and call such witnesses?

The only legitimate object of a criminal prosecution is to show the facts. To lay before the triors the whole transaction as it was, whether it tends to establish guilt or innocence. Hurd v. People, 25 Mich. 405;People v. Etter, 81 Mich. 570, 45 N. W. 1109;People v. Kindra, 102 Mich. 147, 60 N. W. 458. Eyewitnesses to alleged crimes should not only be produced, but sworn and examined by the prosecutor. Maher v. People, 10 Mich. 212, 81 Am. Dec. 781;People v. Deitz, 86 Mich. 149,49 N. W. 296;People v. Kindra, 102 Mich. 147, 60 N. W. 458;People v. Moore, 155 Mich. 107, 118 N. W. 742. The prosecution cannot claim a conviction upon evidence which either expressly or impliedly shows that but a part of the res gestae has been proven. The prosecuting attorney cannot thus deprive defendant of the benefit of the presumption of innocence and throw upon him the burden of proof. Maher v. People, 10 Mich. 212, 81 Am. Dec. 781;Hurd v. People, 25 Mich. 405;Wellar v. People, 30 Mich. 16;Meister v. People, 31 Mich. 99;People v. Elco, 131 Mich. 519, 91 N. W. 755,94 N. W. 1069. There is no fairness in permitting the prosecuting attorney to select only those eyewitnesses whom he desires to call and not call others equally qualified to testify, and he cannot be permitted to resort to it. Wellar v. People, 30 Mich. 16;People v. Swetland, 77 Mich. 53, 43 N. W. 779.

‘It is the duty of the people to produce all available eye-witnesses or excuse their nonproduction in the proper way.’ People v. Todaro, 253 Mich. 367, 235 N. W. 185, 186.

‘The failure to indorse and produce these witnesses is not a mere irregularity. It is a positive invasion of a substantial right of the respondent under the law.’ People v. Blazenzitz, 212 Mich. 675, 180 N. W. 370, 371, citing People v. Hall, 48 Mich. 487, 12 N. W. 665,42 Am. Rep. 477;People v. Price, 74 Mich. 41, 41 N. W. 853;People v. Howes, 81 Mich. 400, 45 N. W. 961.

Defendant's counsel, by motion timely made, raised the question of the indorsement of the names of these witnesses on the information and their production as eyewitnesses. No order was made by the trial court. The prosecuting attorney said in his closing argument to the jury: ‘It is not my duty to put a witness on the stand I know about.’ Under the circumstances we think the refusal of the trial court to indorse the names of all of the eyewitnesses upon the information known to the people when the matter was called to his attention was error which tended to prejudice the rights of defendant.

3. Defendant introduced testimony tending to show his good character. On cross-examination of defendant's good character witnesses the prosecuting attorney asked the following questions, and against defendant's objection the court permitted the witnesses to answer the same:

‘If it develops while he worked for you he was keeping company with a married woman and if you happened to know that, would that change his reputation in your opinion for being a law-abiding citizen?

‘If you knew, and the facts of this case show that Mr. Hill was keeping company with a married woman, would that change your opinion any?

‘If you knew on the evening of November 27, 1930, respondent went out to a social gathering, with no idea of anticipating any trouble and put that revolver loaded into his belt, took it with him, would that affect your opinion as to his reputation as a law-abiding citizen?’

Under all the authorities this cross-examination was improper.

‘The appropriate proof of character is by establishing general reputation.’ 22 C. J. 479. People v. Albers, 137 Mich. 678, 100 N. W. 908.

When a defendant has put his character in issue by proof of general reputation, it is not competent nor relevant on the part of the prosecution to introduce evidence of independent acts of misconduct. Wharton, Criminal Ev. (10th Ed.) p. 61.

‘Rebutting evidence of character should in like manner be by proof of general reputation.’ 22 C. J. 480.

‘Nothing but general reputation is allowable for such a purpose. It cannot be attacked by proof of particular acts or particular suspicions. This doctrine is elementary.’ Proctor v. Houghtaling, 37 Mich. 41.

The reason for the rule is that to hold otherwise would raise collateral issues.

‘As has often been remarked, the general reputation of any one may be expected to be within the knowledge of attainable witnesses at all times, but it would be impossible to be prepared for all the particular slanders which perjured and malicious witnesses might invent.’ Proctor v. Houghtaling, 37 Mich. 41.

The rule of this case was followed by this court in Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624, and Smitley v. Pinch, 148 Mich. 670, 112 N. W. 686.

‘Within what limits must the rebutting evidence be confined? I think that evidence must be of the same character and confined to the same limits. * * * that as the person can only give evidence of general good character, so the evidence called to rebut it must be evidence of the same general description, showing that the evidence which has been given in favor of the prisoner is not true, but that the man's general reputation is bad.’ Reg. v. Rowton, L. & C. 520, 531.

There is a difference in the rules governing the introduction of rebuttal testimony and governing cross-examination. A witness who testifies to another's good reputation may be cross-examined to test his knowledge and candor, 22 C. J. 483; for that purpose it has been held he may be asked if he has heard of specific cases of misconduct. He may be asked these questions only to test his credibility and ascertain the weight to be given to his testimony. Rex v. Martin, 6 C. & P. 562;Leonard v. Allen, 11 Cush. (Mass.) 241;Commonwealth v. O'Brien, 119 Mass. 342, 20 Am. Rep. 325.

On the other hand, it has been held the people may not, on cross-examination of defendant's good character witnesses, go into specific acts or conduct on particular occasions, and, when the trial court has permitted such cross-examination over defendant's objection, judgment of conviction has been reversed. Nelson v. State, 32 Fla. 244, 13 So. 361.

Chamberlayne on Ev. par. 3314, thus summarizes the general rule: ‘Where a witness testifies that the reputation of a certain person is good, he may be asked on cross-examination if he has not heard of particular acts of misconduct by such person. The inquiry must be limited to what the witness has heard, facts within his personal knowledge not being regarded as competent. The evidence is not received with a view to affecting the reputation of the person under consideration. It is said to be admitted to test the credibility or the knowledge of the...