People v. Jenness

Decision Date10 July 1858
Citation5 Mich. 305
CourtMichigan Supreme Court
PartiesThe People v. Simon B. Jenness

Heard June 5, 1858; June 8, 1858 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

On exceptions from the Recorder's Court of the city of Detroit.

The information against defendant contained one count only, charging him with the commission of incest with Delia E. Ashcroft, the daughter of his sister, Martha Jane Ashcroft, at the city of Detroit, on the 24th day of February, 1858.

On the trial in the court below, the prosecution proposing to place said Delia on the stand as a witness the defendant's counsel examined her on her voir dire as to her religious belief, and she testified that she believed in the existence of a Supreme Being, and always had, and never, to her knowledge, had said that she did not. She was then sworn in chief, and gave evidence that her mother was Martha Jane Ashcroft. She was then asked whether she had at any time heard defendant say what relation he was to her mother, which question was objected to, the objection overruled, and exception taken. The witness answered that she had heard him say he was her mother's brother.

The witness then testified that on the 17th day of January, 1858, defendant called at her room in the Howard House, in the city of Detroit, and then and there had sexual intercourse with her.

The witness being then asked in reference to other acts of sexual intercourse between herself and the prisoner, the counsel for the prisoner objected to the giving of such testimony as proof of the charge contained in the information. The court overruled the objection, and allowed the prosecution to give evidence of other acts of sexual intercourse between the prisoner and the witness, not as substantive offenses, but in explanation and in corroboration of the evidence of the act charged in the information, to which the prisoner, by his counsel, objected, and an exception was taken to such ruling.

The witness then testified to numerous acts of sexual intercourse between herself and the prisoner, at various places within and without the said city of Detroit, commencing in 1853, and continuing to the time of the act first sworn to as above stated. All of which testimony was taken subject to the objection of defendant's counsel.

The witness was then asked: "Was the prisoner acknowledged and treated in your father's family as the brother of your mother?" To which question counsel for prisoner objected. The court overruled the objection, and an exception to such ruling being taken, the witness replied: "He was, always."

On cross-examination by defendant's counsel, the witness testified that she believed in a God, and had never, to her knowledge expressed her disbelief in a God; and that she remembered a conversation at the house of John S. Jenness, in the spring of 1857, and that she had not in that conversation disavowed her belief in a God. The witness was further asked if, in a certain conversation--the time, place, etc., being stated, in order that the witness might be impeached, if necessary--she had not disavowed a belief in a Supreme Being? Which question was objected to, and the objection sustained, and an exception to the ruling taken.

The prosecution then called Martha Jane Ashcroft, who testified that she was the mother of the witness, Delia E. Ashcroft; that she knew the defendant, and that he is her brother, and as such has always been acknowledged and treated in the family.

Acts of improper and indecent familiarity between defendant and said Delia, at various times before the commission of the alleged act at the Howard House, were also sworn to by the father and mother of said Delia, and by other witnesses called by the prosecution.

On the part of defendant, Lucy J. Jenness was called as a witness, by whom defendant's counsel proposed to prove that, on the occasion referred to by her in her cross-examination, the witness, Delia E. Ashcroft, had disavowed a belief in God, or a Supreme Being; which testimony was objected to by the prosecution. The court sustained the objection, on the ground that under the constitution and laws of Michigan, the religious belief of the witness could not be inquired into; and exception was taken.

The prosecuting attorney, after the evidence was closed, proceeded to sum up for the people, and in the course of his remarks argued to the jury that the evidence would authorize them to find the defendant guilty of the act of incestuous intercourse testified to have occurred at the Howard House on the 17th of January, 1858. He further proceeded to state and contend before the jury, that if they were not satisfied from the testimony that the alleged act at the Howard House was proven, it was competent for them to find the defendant guilty of any other act which they should be satisfied from the testimony had been committed between defendant and said Delia, at any other place within the city of Detroit, at any time within six years before the filing of the information.

Whereupon, the counsel for defendant interrupted the prosecuting attorney, and objected to this statement and argument to the jury, on the ground, that though time, as alleged in the information, was not material, yet, as the information charged a single act, it was necessary that the prosecution should select and rely on some particular act as the one intended to be charged in the information, and to indicate what act was claimed to be the one charged in said information; and that it was not competent to rely on various distinct acts, done at different times and places, and to leave such various distinct acts to the jury, from which they might select any one committed within said period of six years, in said city, which they should deem to have been proven before them. But the court overruled the objection, and said that the court should, when it came to instruct the jury, charge that they might so select any of such acts within said period of six years, and allowed the prosecuting attorney to proceed and argue to the jury as at present. To which ruling the defendant excepted, and the court noted such exception.

The counsel for the defendant then requested the recorder to charge the jury:

1. That, as the information charged but one act of incest or incestuous intercourse, and contained but one count, the prosecution must, in its evidence, be confined to the proof of such one act, and can not give in evidence testimony relative to other like acts between the parties, at different times and in different places. Which charge the court refused to give, and defendant excepted.

2. That, although the prosecution was not required to prove the offense to have been committed on the day alleged in the information, yet, under the information in this case, it must select the act relied on as constituting the offense charged, and can not submit any other act to the jury for their verdict under this information. Which charge the court refused to give, and defendant excepted.

3. That, the prosecution having opened its evidence by testimony tending to prove that an act of incestuous fornication was committed by the defendant with Delia E. Ashcroft, named in the information, on the 17th January, 1858, at the Howard House, in the city of Detroit, Wayne county; and the prosecution still insisting that such act has been proven, and that the defendant is liable to be found guilty for such act, that this must be taken to be the offense charged in the information, and is the only one which can be submitted to the jury for their verdict, and that the jury can render their verdict only upon such charge. Which charge the recorder refused to give, and defendant excepted.

4. Counsel requested the court to advise the jury that they ought not to convict the defendant upon the evidence of the complaining witness, Delia E. Ashcroft, unless she is corroborated in some matter material to the issue. Which advice the court refused to give, and defendant excepted.

The recorder then charged the jury, among other things:

That the witness, Delia E. Ashcroft, by her own testimony, is shown to have been imprudent, if not criminal, in her intercourse with men: that it is her character for truth and veracity from which the jury are to decide whether or not her evidence is entitled to credit; and if the jury believe her to be a person of had moral character, they may take that into consideration in weighing the probability of the testimony.

That Mr. and Mrs. Ashcroft, and other witnesses, had testified to acts of improper intimacy between defendant and said Delia; that every witness who testified at all on the subject, declared as to the intimate relations which existed between them; that the jury had the evidence of Delia herself, and of the other witnesses who swear to the closest kind of intimacy; and that from this testimony he left it to the jury to say whether there was an intimacy between defendant and said Delia, or not, or whether the intimacy was such as is usual between an uncle and his niece, and was altogether innocent.

That the witness, Delia E. Ashcroft, was to be viewed in the light of an accomplice--she was a particeps criminis in this crime if any crime has been committed. That, if the jury believed her evidence, it was competent to convict on that alone. That the rule of law was, that verdicts should be given on testimony which produced conviction in the minds of the jurors, and if the uncorroborated testimony of an accomplice had that effect, then it was competent to convict on her testimony alone. The law did not require that the testimony of an...

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185 cases
  • People v. VanderVliet
    • United States
    • Michigan Supreme Court
    • 1 December 1992
    ...at issue in the case." (Emphasis in original.)1 The first case in which this Court adopted an other acts evidence rule is People v. Jenness, 5 Mich. 305 (1858).2 Michigan does not require a limiting instruction.3 M.C.L. § 768.27; M.S.A. § 28.1050. Although the Michigan Legislature has enact......
  • Battles v. State
    • United States
    • Texas Court of Criminal Appeals
    • 30 November 1910
    ...35 Ala. 395; Cross v. State, 78 Ala. 430; Brevaldo v. State, 21 Fla. 789; United States v. Griego, 11 N. M. 392, 72 Pac. 20; People v. Jenness, 5 Mich. 305; People v. Skutt, 96 Mich. 449, 56 N. W. 11; People v. Schilling, 110 Mich. 412, 68 N. W. 233; State v. Markins, 95 Ind. 464, 48 Am. Re......
  • Skidmore v. State
    • United States
    • Texas Court of Criminal Appeals
    • 22 December 1909
    ...v. De Hart, 109 La. 570, 33 South. 605; People v. Skutt, 96 Mich. 449, 56 N. W. 11; People v. Cease, 80 Mich. 576, 45 N. W. 585; People v. Jenness, 5 Mich. 305; State v. Pippin, 88 N. C. 646; State v. Kemp, 87 N. C. 538; Com. v. Bell, 166 Pa. 405, 31 Atl. 123; State v. Reynolds, 48 S. C. 38......
  • People v. Wilkins
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    • Court of Appeal of Michigan — District of US
    • 3 April 1978
    ...the admissibility of such evidence in other contexts. See, People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973); People v. Jenness, 5 Mich. 305 (1858).2 However, the defendant's commission of the other acts need not be established beyond a reasonable doubt. People v. Duncan, 402 Mich. ......
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1 books & journal articles
  • The whole truth: restoring reality to children's narrative in long-term incest cases.
    • United States
    • Journal of Criminal Law and Criminology Vol. 87 No. 4, June 1997
    • 22 June 1997
    ...Ct. App. 1985). cert. denied, 114 S. Ct. 2763 (1994). (277) 213 N.W.2d 97 (Mich. 1973). (278) Id. at 99 (quoting People v. Jenness, 5 Mich. 305, 323 (279) People v. Wright, 411 N.W.2d 826 (Mich. Ct. App. 1987); People v. Bailey, 302 N.W.2d 924 (Mich. Ct. App. 1981). (280) For example, in Pe......

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