People v. Hurwich

• Decision Date: 23 June 1932
• Docket Number: No. 194.,194.
• Parties: PEOPLE v. HURWICH et al.
• Court: Michigan Supreme Court

259 Mich. 361

243 N.W. 230

PEOPLE

v.HURWICH et al.

No. 194.

Supreme Court of Michigan.

June 23, 1932.

Appeal from Circuit Court, Berrien County; Charles E. White, Judge.

Maurice L. Hurwich and Claude E. Nicely were convicted of arson, and they appeal.

Affirmed.

Argued before the Entire Bench.

WIEST, McDONALD, and BUTZEL, JJ., dissenting.Gore & Harvey and Charles W. Gore, all of Benton Harbor, for appellant Maurice L. Hurwich.

Graham, Crane & Elliott, of South Bend, Ind., and Stuart B. White, of Niles, for appellant Claude E. Nicely.

Paul W. Voorhies, Atty. Gen., Edward A. Bilitzke, Asst. Atty. Gen., Wilbur M. Cunningham, Pros. Atty., of Benton Harbor (Harold J. Waples, of Lansing, of counsel), for the People.

WIEST, J.

Defendants were convicted of the crime of arson; it being claimed that they engaged their employee, Eugene L. Furkas, to set fire to a paper mill, in which they were principal stockholders, at St. Joseph. Furkas confessed and testified that, on January 28, 1928, he visited defendants at South Bend Ind., where they resided, to obtain money to pay employees at the paper mill and, while there, was given a check by defendant Hurwich, and defendants asked him to set fire to the mill, and he did so the next day. Defendants denied asking Furkas to burn the mill, claimed he was not in South Bend on the 28th, but was there on the 26th, and defendant Hurwicn, on the 26th, gave him a check to pay the employees, and neither defendant saw him on the 28th. Defendant Nicely claimed he was in the city of Chicago on the 28th.

Counsel for the prosecution contend that no appeal has been perfected. Defendants were convicted November 21, 1930. At that time the Code of Criminal Procedure (C. L. 1929, § 17355, et seq.), regulated the practice for review by writ of error upon allowance by this court, and gave the trial judge power to extend the time for settlement of a bill of exceptions, not more than three months from the date of the order granting application for a writ of error, with power in this court to grant further time, not beyond one year after judgment. January 1, 1931, this court, by virtue of power vested therein by the Constitution, Art. 7, § 5, and conceded by the Legislature, C. L. 1929, § 13604, promulgated rules regulating practice and procedure in appeal cases, and by rule No. 66 provided that bills of exceptions be settled within twenty days after notice by the clerk of the trial court of the filing of designated subject-matter, or within such further time as the trial court might allow.

Time to settle a bill of exceptions herein was extended by the trial judge, and the bill was settled and signed within the year after verdict. The trial judge had power, under the rule, to extend the time, and, when we allowed the appeal, this court assumed jurisdiction, and the case is before us for review.

Counsel for defendants assign 157 errors, of which few have sufficient merit to call for discussion.

Defendants were evidently men of affairs. The paper mill was a valuable plant, but the business was a losing venture and needed refinancing, which was being endeavored at the time of the fire.

The principal testimony against defendants was given by the self-confessed ‘fire bug’ and one Victor Troyer, who claimed he was asked, along with Furkas, to burn the plant, but took no part in doing so.

We find errors assigned upon the asking of some questions, but no objections made thereto and no rulings thereon by the court. We cannot make review in such instances for the error, if any, was want of objection by counsel. If counsel had no objection to offer, then they have no error to assign now. A question may carry a harmful imputation or suggestion regardless of an answer thereto, but if it should not be asked it should be objected to and a ruling had for the purpose of review.

At the time of the fire, Charles W. McLain was an employee of the Hurwich Iron Company of South Bend, Ind. He was called by defendants as a witness at the trial, and testified to conversations he had had with Victor Troyer, one of the principal witnesses for the prosecution. On cross-examination he was asked: ‘Now, I will ask you if, at that time, you didn't say to Troyer, in substance and effect, that you had told Mr. Schwartz, one of Mr. Hurwich's attorneys, that they were going at this case from the wrong end-* * * and that they should assume that Hurwich and Nicely were guilty, because they were guilty as hell and you knew it.’

Over objection, the court ruled the question might be answered. The witness answered, ‘No.’ The question was improper but, considering the answer, we cannot hold it constituted reversible error.

Defendant Hurwich is a Jew. The Assistant Attorney General, who was aiding the prosecuting attorney, asked the following question of William Miller, a witness for the defense: ‘At about the time you gave Alex DeFields this letter didn't you say to him in substance and effect, ‘Hurwich or these people (referring to the St. Joseph Board and Paper Company) are going to go broke,’ and that ‘two bankruptcies and a fire is a Jewish fortune.’ Did you use that language?'

The witness answered: ‘No, sir.’

Counsel for defendant stated: ‘Move the answer be stricken out as highly prejudicial to these defendants; especially defendant Nicely; said to a third party and has no connection with defendants in this case; entirely hearsay.’

The court ruled: ‘Let it stand.’

Counsel then stated: ‘I meant to ask that the question be stricken out. I don't care about the answer.’

The court made no further ruling.

The question was improper, called for a conversation between the witness and a third party, and, if ever uttered, was wholly inadmissible. The asking of it served as a means to convey to the minds of the jurors a senile cackle of slapstick days with prejudicial effect, if not of purpose. There was no excuse for asking the question, and it should have been stricken from the record, counsel admonished, and its poisonous effect purged by instant instruction accomplishing such end.

The verdict was rendered November 21, 1930.

In his closing argument to the jury, the prosecuting attorney stated: ‘Thank God for such women as Miss Kinnamon. I tell you it takes courage to do what that girl did in this case. Down there among a bunch of criminals-that is the best you can say for them. Perjurers and liars, and that is mild! They are going to beat this case and they don't care how; they are willing to manufacture evidence; they are willing to fabricate alibis.’

While this is assigned as error, we find no objection made, and we must therefore pass it, but not without stating that it is not within the office of an attorney to indulge in such invective.

At the trial defendant Hurwich was unable to produce the check he claimed was given to Furkas on the 26th, and Furkas claimed was given him on the 28th of January, 1928. In the argument to the jury, the prosecutor stated: ‘There is one perfect defense in this case; one perfect defense. You remember, Furkas said the time of the conspiracy in Nicely's office Hurwich gave him a check to have cashed so he could pay the wages of the men at the St. Joe plant. The defense has brought in stubs of the Hurwich Iron Company. They are stubs of the Hurwich Iron Company. They brought those in and brought in some checks. They did that to show there was no check written to Hurwich in that book on the 28th. Of course there wasn't because this check was given at Nicely's office and not at Hurwich's office. Hurwich wouldn't be carrying that big book with all those checks around in his pocket. There was never any question there. One of the defense attorneys started to misquote the evidence * * * this meeting in which the conspiracy took place, took place at Nicely's office and nowhere else and the testimony all along has been that way; therefore it couldn't have been one of those. It was his personal check. That is the checkbook that Hurwich would have in his pocket and that is the check he gave, a personal check. Why don't they bring in the same books on his personal account. If they had brought in the same thing on his personal account and we had been unable to find a check numbered numerically, no missing check, wouldn't that have been a defense? If we couldn't find a check written in on that date, wouldn't that have been a fine defense? Now do you believe that wasn't thought of by these five attorneys. They thought of it but why didn't they bring it in? I'll tell you why. They didn't dare, because that check was in existence! We couldn't get it, of course. Those checks were asked for. Did they bring them in? Not on your life because they would have had to do one of two things if they brought in this check. That would have convicted them and you know it. That is the biggest point in this case. Alibis manufactured! They could do that by not bringing into this court the stubs on his personal account and checks of his personal account. That would have given you something to work on. You are entitled to all the evidence in this case and you didn't get that and didn't get it because if it had been brought in it would have been the most damaging thing against them that could be obtained. Schwartz says there was no such check written. Why didn't they bring their stubs in their numbers as of that date? He wasn't testifying; I wouldn't take his word for it. You have a right to have those things produced here and when they don't produce them, you are the only judge and govern yourselves accordingly. I don't believe you are going to allow this arson gang to come into this court and buy their way out with perjured testimony.’

Motion for a new trial was filed December 10, and denied December 15, 1930. December 29, 1930, by motion, the court was requested to extend the time for presenting a motion for a new trial, accompanied by the proposed motion showing newly discovered facts having an important bearing upon the...