People v. Hoover

• Decision Date: 24 July 1928
• Docket Number: No. 123.,123.
• Citation: 243 Mich. 534,220 N.W. 702
• Parties: PEOPLE v. HOOVER.
• Court: Michigan Supreme Court

243 Mich. 534

220 N.W. 702

PEOPLE

v.HOOVER.

No. 123.

Supreme Court of Michigan.

July 24, 1928.

Error to Curcuit Court, Monroe County; Jesse H. Root, Judge.

Keith Hoover was convicted of simple assault, and he brings error.Reversed, and new trial granted.

Argued before the Entire Bench except POTTER, J.

Golden & Nadeau, of Monroe, for appellant.

Wilber M. Brucker, Atty. Gen., and Edgar G. Gordon, Pros.Atty., of Monroe, for the People.

WIEST, J.

Defendant was convicted of ‘simple assault,’ under an information charging him with taking indecent liberties with the person of a female child under the age of 14 years, without committing or intending to commit the crime of rape.It was claimed the crime was committed in the haymow of defendant's barn at about 5 o'clock in the afternoon of Friday, October 22, 1926.Defendant denied the charge and also made the defense of alibi.Review is had by writ of error.

An assault was necessarily included in the charge as laid; but it is said that the trial judge did not so instruct the jury.The instruction given covered the major offense and included the minor offense of assault and battery.We find no request upon the subject of assault.Defendant was convicted of the least offense involved in the charge and has not been harmed by the failure of the court to advise the jury that they might do just what they did do.It is also urged that, under the proofs, defendant was either guilty of taking indecent liberties or not guilty of any offense.This argument has been made before, but not with success.People v. Martin, 208 Mich. 109, 175 N. W. 233;People v. Garner, 211 Mich. 44, 178 N. W. 75.The verdict may be illogical, and was characterized by the trial judge, in denying a motion for a new trial, as unsatisfactory to the people and to defendant.Defendant, however, cannot complain.

It was the claim of the prosecution that defendant took indecent liberties with two girls on the occasion charged.Of course, the prosecution was for taking indecent liberties with but one girl.

Error is assigned upon the following argument of the prosecutor:

‘I am going to ask you one other hypothetical thing or picture another situation and say, What if it was Tamara's Case that was being prosecuted at this time?What if we were prosecuting the Jurgenson Case?Oh, you may say, that might be a whole lot different.That girl didn't get any disease anywhere; that would be a different case.How would it be different?You have the same testimony, and for that reason how could anybody suggest that you switch away from the testimony, of girl?They don't argue a word about Tamara's testimony; they keep still about that.Let's talk about it as if it were her case; it would be the same case.Would you say she was a bad girl?Is there any evidence that she was bad and not to be believed?Is there any reason why she told that this happened to herself?That is not true.Why couldn't she leave out herself and say that it hadn't happened to her, and to say that he did it to the other girl?Figure it out any way you want to and it comes back to the same matter-that if we were trying her case would you believe her any more readily that you do not?Then why not believe her now? * * *

‘Why are we here?We are here to suppress crime.That is the purpose of all criminal law.Mr. Golden was careful to ask you men if you had read the stuff in the papers about the duties of jurors in respect to stopping crime.What of it?If you had read it, because you have honestly read and become interested in the stopping of crime?What harm is there in that?What is the effect on society, on Bedford township, on Monroe county, Michigan, if a guilty man be acquitted by a jury in a case of this sort?Every mother and girl, every brother and father, should have an interest in such cases.What about it if they were your girls?I am not trying to bring prejudice in this case, but I say it is an important matter.Suppose it happened to one of your children?I put it the other way: Supposing it happened in your immediate neighborhood, in your township where your own...