People v. Jebb

• Decision Date: 26 April 1966
• Docket Number: No. 549,No. 3,549,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Delmar Harvey JEBB, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 659

141 N.W.2d 659

3 Mich.App. 118

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Delmar Harvey JEBB, Defendant-Appellant.

Cal. No. 549.

Court of Appeals of Michigan, Division No. 3.

April 26, 1966.

Thomas P. Patterson, Patterson & Patterson, Bay City, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Martin B. Legatz, Pros. Atty., Bay County, Bay City, for appellee.

Before WATTS, P.J., and FITZGERALD and HOLBROOK, JJ.

WATTS, Presiding Judge.

Delmar Harvey Jebb was found guilty by jury of rape in violation of C.L.S.1961, § 750.520 (Stat.Ann.1954 Rev. § 28.788) in Bay county circuit court. Defendant was sentenced to Jackson Prison on September 30, 1959, to a term of not less than 20 nor more than 30 years. On January 7, 1965, a petition for appointment of counsel for an indigent for purposes of appellate review was filed by the defendant and counsel appointed by order of the same date. Thereupon counsel proceeded to file a claim of appeal on February 15, 1965, clearly beyond the jurisdictional time requirement for taking an appeal contained in GCR 1963, 803.1. The proper procedure for counsel would have been to file an application for delayed appeal pursuant to GCR 1963, 803.3 and 806.4(2). We shall treat the filing in this appeal as an application for delayed appeal and hereby order the application granted.

The complainant is a 44-year old woman who lives alone in Bay City, Michigan. The defendant is a young man who had visited friends living in the complainant's neighborhood and had seen her dressed in shorts, working in her garden.

No useful purpose can be served by repeating the many sordid facts in the record. The testimony is clear and undisputed that defendant Jebb forced his way into complainant's house at approximately 5:00 a.m. on May 30, 1959, and had sexual relations with her. She testified that defendant chocked, beat, abused, blindfolded, put her in fear of her life, and committed an act of sexual intercourse against her will.

The defendant contends that he forced his way into complainant's house and she consented to the act of sexual intercourse.

The defendant claims: (1) that it was error for the trial court to restrict the jury to a charge of rape alone in view of the testimony; and (2) that the admission in evidence of defendant's June 2, 1959, statement was a violation of his constitutional rights.

The trial court did not instruct the jury on the offenses included in the crime of rape, nor did counsel make such a request.

The Court finds no reversible error in the instruction given to the jury by the trial court. Code of criminal procedure, C.L.1948, § 768.29 (Stat.Ann.1954 Rev. § 28.1052) reads as follows:

'It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witness, as in his opinion the interest of justice may require. The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.'

In People v. Thomas (1965), 1 Mich.App. 444, 136 N.W.2d 721, this Court held that the trial court did not err in failing to instruct the jury on the included offenses when there was no request to do so by counsel. Cited in support of this Court's finding: People v. Allie (1921), 216 Mich. 133, 184 N.W. 423; People v. Robinson (1924), 228 Mich. 64, 199 N.W. 622; People v. Collins (1921), 216 Mich. 541, 185 N.W. 850; People v. Manchester (1926), 235 Mich. 594, 209 N.W. 815.

There is ample evidence to support the People's contention that the defendant's statement of June 2, 1959, was voluntary and accepted in evidence only after his counsel stated that he had no objection to receiving the statement in evidence.

Direct Examination by Defense Counsel

'Q. Mr. Jebb, are you the defendant in this case?

'A. Yes, I am.

'Q. I want you to speak up so the jury can hear. Have I instructed you regarding the fact the constitution guarantees you do not have to incriminate yourself and you do not have to take the stand in your own behalf--you understand that?

'Q. Yes, I do.

'The Court: If you don't speak louder witness, the jury is not going to hear. You will have to speak up.

'Q. Have I explained to you you do not have to take the stand on your own behalf?

'A. Yes, you have.

'Q. I also explained if you do take the stand and testify on your own behalf, the prosecuting attorney, Mr. McDonough and Mr. Laracey may cross examine you on anything that would--pertain to this case.

'A. Yes, you have.

'Q. Are you willing to make a statement and testify before this court?

'A. Yes, I am.

'Q. Do you testify and make the statement voluntarily?

'A. Yes, I do. * * * Between 9:00 and 2:00. My friend was going to give me a ride down to mother's house--we got half way down there, about on 32nd and Marsac, some place around there and me and him started arguing--I was going home where my wife was and he said he was not going to take me--he lives down there and I told him to let me off there and I would go home to my mother's--as I was walking by there, walked by Miss Boley's house, stopped, went up to the front door, knocked, nobody answered, so I broke the glass and went in and she was standing in the arch to the kitchen, I started to say something to her and she started screaming and--

'The Court: What time was this?

'A. This was the next morning after 5:00--quarter after 5:00, 5:30, something like that--I don't remember the exact time--and she started screaming, running into the kitchen. I got scared--she must not have recognized me--I got scared and grabbed her around the neck with my arm--I yoked her out.

'The Court: What do you mean?

'A. You put your arm around a person's neck from behind and make them pass out by putting pressure on the nerves of the neck. I yoked her out, she fell on the floor and I started to talk to her--she was laying and moaning--I got kind of scared--I put a blindfold on her, started talking to her, trying to calm her down--laying there moaning--I was scared of what I done--I did not realize what I did--I thought if I could not calm her down I would leave--she seemed to be calming down pretty good-- I started to grab her in the kitchen, talking to her--she told me I should not have come--broke the door like that--I told her I was sorry--I did not realize what I was doing when I did it--she said if I had waited a little while longer she would have answered the door, then she took the blindfold off in the kitchen, then we went into the bedroom and she--well, we started making love but I could not get aroused--this was in the bedroom and so she suggested--'

Cross Examination by Mr. McDonough

'Q. Witness are you a married man?

'A. Yes, I am.

'Q. How long have you been married?

'A. Two years.

'Q. Do you have any children?

'A. Yes, I do.

'Q. How many children do you have?

'A. Two children.

'Q. You sat here this morning when I read the statement you gave to the prosecuting attorney, were you sitting here?

'A. Yes, I was.

'Q. It is true you gave that statement voluntarily to the prosecuting attorney of this county?

'A. It was.

'Q. Did you voluntarily tell this jury you broke the glass in that woman's door, May 30, 1959, is that right?

'A. Yes, I did.

'Q. And when you entered her home, is it true you struck her on a number of occasions that morning?

'A. It is not.

'Q. Then how would you get her mouth bloody?

'A. I don't know how--I think probably when I yoked her out I was kind of drunk--when I left go of her she fell to the floor--she probably bumped her head.

'Q. Probably bumped her head and you sit here and she voluntarily submitted to you after you yoked her out, as you call it?

'A. Yes, I do.

'Q. You admit you had intercourse that morning with her?

'A. Yes, I do.

'Q. You admit this statement is absolutely correct, don't you?

'A. I admit I gave it--yes.'

The record indicates that there was no delay by the defendant, the police, or the court after the alleged attack.

After the defendant left the house, the complainant called her neighbor on the telephone and told her something terrible had happened and that she was afraid and asked her to watch the house because she was going to call the police and wanted to make sure 'nobody came to my house and caught me calling the police.' The complainant called the police department and told them that a young man had broken into her home, beat and raped her, and that she wanted the police to come out. Within 5 minutes a police officer came to her home. Later other officers came to her home and showed her a number of pictures. She identified a picture of the defendant Jebb....