People v. Howes
| Decision Date | 13 June 1890 |
| Citation | 81 Mich. 396,45 N.W. 961 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. HOWES. |
Appeal from circuit court, Genesee county; WILLIAM NEWTON, Judge.
Clarence Tinker, Lee & Aitken, and Sumner Howard, for appellant.
Chas. H. Johnson, Pros. Atty., for the People.
The respondent was convicted of the larceny of $900 from the safe of one J. Max Davis, in the village of Fenton. Davis kept a jewelry store in which he had a large burglar-proof safe, so called. He was village treasurer, and kept the village moneys, then amounting to about a thousand dollars, as claimed by him, in this safe. The claim of the prosecutor was that respondent entered this store on Saturday night February 16, 1889, and either unlocked the safe, or found it left inadvertently unlocked, and stole the money. The case presents some remarkable features, and counsel for the people and for the respondent have argued very ably and strenuously to convince this court, the one of his guilt, and the other of his innocence. But it is not our province to pass upon that question. That was exclusively for the jury. Our only duty is to determine whether such prejudicial errors were committed as to deprive the respondent of that fair and impartial trial guarantied him by the constitution and the law. A very brief statement of the case will suffice for an understanding of the errors alleged. Davis, the complaining witness, testified that the outside door of the safe was supplied with a three-tumbler combination lock, and the inside door with a four-tumbler burglar-proof lock; that this combination was known only to himself and two of his employes; that he was the last one at the safe that night, and thought he locked it, though he could not swear positively that his brother locked the front door of the store, and one of the boys the back door; that the respondent was in the store that evening, and, upon closing up, accompanied witness and others part of the way home. Respondent had been in the employ of Davis at various times from 1885 to February 1, 1888, and since then had been a frequent visitor at the store. The loss of the money was not discovered until Monday morning, when the safe was opened. The doors of the store and the safe were at that time all found securely locked. Other evidence on the part of the prosecution tended to show that respondent, after parting with Davis and others who were with them, went to his father's, about three-fourths of a mile distant, and then returned, and was seen standing in the door-way of the store, with the door ajar; that he paid out considerable sums of money shortly after the time of the alleged larceny; and that upon his arrest he made certain statements tending to show guilt. The prosecution further gave evidence tending to show that respondent's parents were poor, and his father a cripple, and that respondent, together with his brothers and sisters, contributed to their support; that he lived and dressed well, went into society, bought a watch and chain and ring, took music lessons; that he always worked for small wages; that he borrowed money early in the previous fall and winter; that in January previous to the robbery he sought to obtain a loan; that he was in debt in various sums to various parties at the time of the robbery; that he had paid certain of these debts shortly after the robbery; that $111.65 were found upon his person when arrested; that some five-dollar gold pieces were taken from the safe on the night of the robbery; that one such piece was found upon his person when arrested, and that he had disposed of three more such pieces shortly after the robbery. Such, in brief, was the theory of the prosecution. The respondent introduced evidence tending to explain these circumstances; to show where and how he had obtained the money which he had used and which he had; to explain his whereabouts on that night; and that he did not return to the store after he had left it in company with Mr. Davis, but that the time when he was seen standing in the door-way of the store with the door ajar was before the store was closed for the night; and also to show his previous good reputation, which was not questioned by the prosecution. Further reference to the evidence at this point is unnecessary. We may here say, with propriety, that the records of criminal trials will rarely show a greater zeal and ability on the part of the prosecution than were displayed in this case to discover evidence bearing upon the guilt of the accused, and that equal zeal and ability were displayed by counsel for the respondent in his defense.
1. It is alleged that the court erred in permitting the prosecuting attorney to indorse the names of three witnesses upon the information after the trial had begun. The first two names were properly indorsed. The prosecuting attorney stated that he had just learned they were material witnesses. The respondent's counsel waived any further showing on the part of the prosecuting attorney, saying that he would take his word for it. After the complaining witness, Mr. Davis had been testifying for some time, Mr. Wisner, who was assisting the prosecution, said to the court: Counsel for respondent objected to the indorsement, and thereupon Mr. Wisner, being sworn, testified as follows: "I will state that Mr. Johnson was engaged in other criminal business, and requested me to draw the information; that I procured the testimony that was taken in justice's court, and indorsed on the information the names of the witnesses who were sworn on the examination; that I also inquired of the officer as to other witnesses, upon other branches of the case, and received certain names from him which I indorsed; that inadvertently I omitted to place the name of Chester Hamilton upon the information, and I have just discovered that fact." The prosecuting attorney was present at the examination before the justice, and then knew of this witness. The statute required him to indorse upon the information the names of the witnesses then known to him, and authorized him to indorse the names of...
To continue reading
Request your trial