People v. Howard

• Decision Date: 28 November 1888
• Citation: 73 Mich. 10,40 N.W. 789
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HOWARD.

40 N.W. 789

73 Mich. 10

PEOPLE v. HOWARD.

Supreme Court of Michigan

November 28, 1888

Exceptions before judgment to the recorder's court of Detroit GEORGE S. SWIFT, Judge.

Information against William Howard for unlawfully having in his possession burglar's tools with intent to use them, etc. The prisoner testified in his own behalf, and on cross-examination was asked if he did not write to one Sullivan in New Jersey, and ask for money, saying that he would need $500 to clear him. Objections to the question, and others similar thereto, were overruled, and this action constitutes one ground of exception. Verdict of guilty, and defendant excepted.

George F. Robison, Pros. Atty., for the People.

John G. Hawley, for respondent.

MORSE, J.

Respondent was informed against and convicted under section 9175, How. St., which reads as follows: "Every person who shall knowingly have in his possession any engine, machine, tool or implement adapted and designed for cutting through, forcing or breaking open, any building, room, vault, safe, or other depository, in order to steal therefrom any money or other property, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use and employ the same for the purpose aforesaid, shall, on conviction thereof, be punished," etc. The conviction is attacked on four grounds, namely: First. The admission of incompetent evidence to prove respondent's guilt. Second. He was subjected to unfair cross-examination. Third. That the evidence did not establish his guilt. Fourth. The statute above quoted is unconstitutional, and void.

We will examine these objections in their order.

1. One Conely testified to a conversation with the accused, in which he swears respondent said to him that he "hadn't been in the safe business a great while. He most always followed the card business, and that he was going to quit the business six months ago if he hadn't met this man Fred Barr. Barr induced him to go out and do some work with him." Conely was then asked if he knew what Barr's business was, and he replied: "I do. I have known him for the last six years. I saw him a little over three weeks ago, in jail, in Jackson, Jackson county, Michigan. He is a burglar, a safe-blower, pickpocket, and thief. He is now in Jackson state-prison." This evidence was objected to before it was given, and exception taken. We think it was competent to show Barr's business. It tended to show what the respondent had been doing in his work for Barr, and bore upon the intent with which he was carrying the burglar's tools which were found in his possession. It is argued that this was placing before the jury the character of Barr; that the character of respondent could not be attacked by the people, much less could he be injured by proof of the character of his associates. But this was not evidence simply of the character or reputation of Barr. It was proof showing his profession or business. There are persons who follow burglary and theft for a business and as a profession, and who have no other visible means of support, and if the defendant stated that he had been at work for Barr it would seem competent to prove what work Barr was following for a livelihood. That part of the answer which stated that Barr was in state-prison was not responsive to the question, and should have been stricken from the case. But no motion was made to that end, and from the defendant's own evidence and statements we do not think its retention in the case resulted in any harm to the respondent. It must be remembered, also, that the instruments of burglary were undeniably found in his possession. The matter of his guilt of the accusation against him became, therefore, one of intent,-the intent with which he possessed the tools. This intent, being something entirely within the mind of the respondent, must be established without his admission or confession, entirely from circumstances. There should therefore be accorded the people more than usual latitude in the proof looking towards intent. And in such case it seems to me that the associations of the accused would be a legitimate subject of inquiry.

2. We think, when a respondent takes the stand as a witness in his own behalf, he is subject to the same inquiries, upon cross-examination, as any other witness. The examination in this case was not out of the proper bounds, under this rule.

3. There was testimony, if believed, sufficient to warrant a verdict of guilty.

4. It is...