People v. Hubbard, 4

Decision Date04 May 1972
Docket NumberNo. 4,4
Citation196 N.W.2d 768,387 Mich. 294
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Harvey F. HUBBARD, Defendant-Appellee.
CourtMichigan Supreme Court

Paul R. Adams, Chief Asst. Pros. Atty., and Ronald E. Machnik, Asst. Pros. Atty., Jackson, for plaintiff-appellant.

Willard F. Rappleye, Jackson, for defendant-appellee.

Before the entire bench.

SWAINSON, Justice.

Defendant Harvey F. Hubbard was charged with the crime of statutory rape 1 of his daughter Linda, who was 14 years of age at the time of the alleged incident. Linda testified at the trial that on June 15, 1967, after a family outing of swimming near the family home, the defendant took her to Peacock road, which is located in a rural area of Jackson county, and had sexual relations with her. Defendant testified that Linda accompanied him to pick up some ordered clothing at a Mr. Hufflein's home. When Mr. Hufflein was not at his residence, they returned home by the most direct route and were never on Peacock road. He denied having committed the assault upon his daughter.

Linda did not report the incident to her mother until the next day. Her mother notified the State Police, but Linda was not taken to a doctor until the following day (two days after the alleged incident), and the State Police did not check Peacock road until three days later. The doctor testified he could find no evidence that Linda had been recently raped, that is to say, within the previous 24 hours. He further testified that the hymenal membrane had been broken some time in the past, and he could find no evidence of injury.

Linda's credibility was called into serious question at the trial. When she was 10 years of age she had made a similar charge against her father and at that time was examined by a physician who testified at this trial that he found no evidence of injury to the hymen when he examined her following the earlier charge. Linda spoke untruthfully on the witness stand. She testified on direct examination that her father was fully dressed when she accompanied him on the errand but, upon cross-examination, stated that he was wearing a bathing suit, as she was.

Also, during the trial Linda was asked whether she had communicated with her mother, the defendant's wife, since she had been placed in a foster home subsequent to the alleged incident. After pausing to reflect, she denied she had had any communication with her mother. Her mother at first also denied any such communication, but then it was brought out that there had been several communications between Linda and her mother.

Faith Hubbard, Linda's sister, testified she had been threatened by Linda to tell the police that Linda had been raped.

Two neighbors of the Hubbards testified that Linda's reputation for truth and veracity in the community was not good.

Linda stated in response to a question that she had been in trouble for fighting at school but not for vandalism, and that she had never been in trouble for stealing. However, her former junior high school principal, Norman Persing, stated that she had a bad reputation for truth and veracity and that she had been involved in vandalism at the school. He further stated that she was involved in a robbery at the school. In response to a question, the principal stated that he was not partial to her father and, in fact, had had several arguments with him over Linda and some of the other children.

The trial judge, sitting without a jury, found defendant not guilty of statutory rape but guilty of assault with intent to commit rape. 2 He sentenced defendant to 7 1/2 to 10 years. The Court of Appeals, in an opinion by Judge Levin, reversed. 3 Judge Gillis dissented. We granted leave to appeal. 383 Mich. 789.

The trial judge, because of extremely poor police procedure, found himself in an exceedingly difficult position in determining the facts. The failure of the State Police to immediately take Linda to a doctor and to examine Peacock road for tire tracks, or other evidence, seriously jeopardized the fact-finding process in this case. Any tangible evidence that might have existed was not available, due primarily to the negligence of the police officers.

The People raise four issues on appeal:

1. Whether the decision of the Court of Appeals was clearly erroneous so as to cause material injustice to the People of this State, and whether the decision of the Court of Appeals is in conflict with decisions of the Supreme Court or other Court of Appeals' decisions?

2. Whether the trial court committed reversible error in not following the mandatory requirement of GCR 1963, 517.1 in regard to findings of fact and conclusions of law?

3. Whether the trial court erred by finding that all elements of the crime for which defendant was convicted existed?

4. Whether the People met the applicable burden of proof for the conviction of a criminal offense?

The People contend that the Court of Appeals usurped and invaded the powers granted to a trial court sitting without a jury pursuant to GCR 1963, 517.1, to hear and judge the credibility of the witnesses and to decide the case according to its belief of the witnesses and the evidence presented. The People rely on cases such as People v. Hallman (1941), 299 Mich. 657, 661, 1 N.W.2d 28, where the defendant was tried by the court without a jury and was convicted of the crime of statutory rape. Our Court held:

'It is also urged that the verdict was against the great weight of the evidence.

In our opinion, there was competent evidence, if believed by the trial court, to find defendant guilty of the offense named beyond a reasonable doubt.'

See, also, People v. Chesbro, 300 Mich. 720, 2 N.W.2d 895 (1942) and People v. Martino, 308 Mich. 381, 13 N.W.2d 857 (1944).

However, the court did not find defendant Hubbard guilty of the crime charged, as the trial courts did in Hallman, Chesbro and Martino. But, the trial court in the instant case found defendant guilty of a crime and charged--assault with intent to commit rape. Therefore, we have a different factual situation and the cited cases are not on point.


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10 cases
  • People v. Petrella
    • United States
    • Michigan Supreme Court
    • January 10, 1986
    ...of the evidence questions in bench trials was stated in People v. Hubbard, 19 Mich.App. 407, 413, 172 N.W.2d 831 (1969), aff'd 387 Mich. 294, 196 N.W.2d 768 (1972), as a requirement that the appellate court "review the entire record to determine whether the trial judge clearly erred." Findi......
  • People v. Johnson
    • United States
    • Court of Appeal of Michigan — District of US
    • January 28, 1975
    ...of justice that the guilt of an accused must be proved beyond a reasonable doubt to sustain a conviction. People v. Hubbard, 387 Mich. 294, 299, 196 N.W.2d 768, 770 (1972). In People v. Marvill, 236 Mich. 595, 597, 211 N.W. 23, 24 (1926), on the subject of alibi, Justice Wiest wrote: 'Testi......
  • People v. Triplett
    • United States
    • Court of Appeal of Michigan — District of US
    • April 8, 1981
    ...of the evidence in nonjury criminal cases was stated in People v. Hubbard, 19 Mich.App. 407, 413, 172 N.W.2d 831 (1969), aff'd 387 Mich. 294 (1972): "In a nonjury case we are required to review the entire record to determine whether the trial judge clearly Because it is unclear whether Hamp......
  • People v. Barry
    • United States
    • Court of Appeal of Michigan — District of US
    • June 24, 1974
    ...system of justice that an accused's guilt must be proved beyond a reasonable doubt to sustain a conviction.' People v. Hubbard, 387 Mich. 294, 299, 196 N.W.2d 768, 770 (1972). Application of these principles leads this Court to conclude that the evidence is insufficient to support the distr......
  • Request a trial to view additional results

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