People v. Hunter

• Citation: 132 N.W.2d 95,374 Mich. 129
• Decision Date: 04 January 1965
• Docket Number: No. 5,5
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Clayton Bruce HUNTER, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 95

132 N.W.2d 95

374 Mich. 129

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Clayton Bruce HUNTER, Defendant and Appellant.

No. 5.

Supreme Court of Michigan.

Jan. 4, 1965.

Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, James E. Lacey, Asst. Prosecuting Atty., Detroit, for the People.

Weller, Summer & Feder and Albert Summer, Detroit, for appellant.

Before the Entire Bench.

KELLY, Justice.

Defendant-appellant, Clayton Bruce Hunter, was charged in an information filed in the Recorder's Court for the city of Detroit with having on or about August 9, 1962, committed the crime of carnal knowledge upon Jeanne, ¹ a female child under the age of 16 years, to-wit: 14 years.

After hearing testimony of 12 witnesses during a 9-day trial, a jury found defendant guilty.

A review of the testimony is not necessary for this opinion and would not be of assistance to bench and bar. The decision on this appeal is based on the answers to appellant's questions 1, 2 and 3.

QUESTION 1: 'Where defendant is charged in an information with having committed crime of statutory rape on or about August 9, 1962, and the exact day is fixed by the testimony, and the people have been permitted to show other similar acts to show the relationship of the parties, is it not improper for the court to instruct the jury, in answer to a request by a juror, that they were not bound by the day fixed by the testimony?'

During the second day of deliberation the jury sought help by sending to the court the following note: 'Is Mr. Hunter being accused of this crime having taken place on the night aunty (defendant's aunt, Mrs. Mager) came to town or on or about August 9th.'

The court refused to answer the jury's question, informing them that if he did so he would be trespassing upon their function to interpret the testimony and when the court asked: 'Now, does that satisfy the members of the jury?' the following occurred:

'A JUROR: We want to know if he is being charged with the action taking place that would--through testimony--on a particular night. Now, we know it was on or about that time, but does it take in more than one night or on the night that it was established this action took place?

'THE COURT: I don't know how to answer that question without getting myself in the middle and interpreting the testimony for you.

'A JUROR: Because the testimony was that this action took place the night that the aunt came from Florida and was picked up at the airport and brought home. It was established that that was the night that the action took place. Is that what we are supposed to judge on?

'THE COURT: Well, again, you are asking me to interpret the testimony for you. I cannot do that. I don't think, from what you say, that you are confused about the testimony but it is up to you to interpret what the testimony means and I couldn't do it for you.

'A JUROR: The difference came about because in the information it had not been determined what the date was and so it was established as on or about, but not a specific date. Then, testimony went on to say that it was a particular date.

'THE COURT: Well, that is something for you to determine as jurors. Well, I think I will have to leave it right where it is. So you may return to the jury room.'

After the jury returned to the jury room, the assistant prosecuting attorney informed the court that he believed the jury was confused; and defense counsel told the court he should have answered 'Yes' to the jury's original question because if any crime was proved it had to be the crime that was committed on the night that defendant's aunt came to town.

The court then recalled the jury and instructed them as follows:

'Now, members of the jury, since you were here in the courtroom a short time ago, I have been thinking about this situation and discussing it, and have come to the conclusion that I ought to say something further about the law.

'It is charged in the information that this act occurred on or about the 9th day of August, 1962. Now, that isn't something that must be positively proved. It might have occurred on the 8th, 7th, or the 6th, but if you find or if you are convinced beyond a reasonable doubt that the defendant had intercourse with Jeanne * * * on or about the 9th day of August, even though you conclude that it wasn't the 9th but it might have been the 7th or the 6th, then, if you are convinced beyond a reasonable doubt of it, you could find the defendant guilty; and if you were not convinced beyond a reasonable doubt of it, why it would be your obligation to find him not guilty.

'What I wanted to say to you is that the fixing of a date, as was fixed here, doesn't mean that it must positively be proven that it happened on that date. If you are convinced beyond a reasonable doubt that he did have intercourse with her and it was on or about that date, then, if you were convinced beyond a reasonable doubt of it you would be justified in finding him guilty. If you were not convinced beyond a reasonable doubt then you couldn't find him guilty or shouldn't find him guilty.

'Now, that enlargens somewhat on what was said before and it might help you. So I am going to ask you to go back to your jury room and see whether that has any enlightening effect upon you, and if it doesn't I would like to have you let me know.'

One hour after the jury returned to the jury room they returned with a verdict of guilty against defendant.

We agree with appellee's statement that the jury was confused as they returned to the jury room after the court refused to answer their question, and conclude the court's subsequent instruction did not eliminate that confusion. We cannot approve a verdict of guilty brought in under the such confused circumstances.

Counsel for the people must share responsibility with the court for this reversible error because if counsel had made known to the trial court, as he now admits in the brief filed with this Court, that the convicting testimony, if any, referred to the day that defendant's aunt visited him, this confusion would probably have been eliminated.

QUESTION 2: 'Where medical testimony was offered by the people to support and corroborate claim of prosecutrix that she had sexual relations with the defendant, did not the introduction of such testimony without objection from her, waive her right of privilege to object to testimony from another physician offered by the defense for the purpose of establishing the existence of the same physical condition prior to her claimed relationship with the defendant?'

Jeanne testified she was a virgin prior to her several relations with the defendant and, while admitting that she had sought medical aid and assistance from Dr. Prisbie on several occasions, she was positive that the doctor had never given her a vaginal examination.

People's witness Dr. Carol Platz testified that she examined Jeanne on August 21, 1962; that this examination disclosed she had a marital type hymen but she (Dr. Platz) could not tell how long the condition had existed.

Defense counsel called to the stand Dr. Prisbie for the purpose of showing the results of an examination he made of Jeanne that would disclose she was not a virgin four months prior to the time of the alleged offense. Counsel for the people objected to his testifying on the ground that Jeanne had not waived her rights to claim a privileged communication.

After counsel for the defense called to the court's attention the fact that when Jeanne testified she...