People v. Johnston, 82

Citation328 Mich. 213,43 N.W.2d 334,20 A.L.R.2d 1001
Decision Date27 June 1950
Docket NumberNo. 82,82
Parties, 20 A.L.R.2d 1001 PEOPLE v. JOHNSTON
CourtSupreme Court of Michigan

Stephen J. Roth, Attorney General, Graydon G. Withey, Deputy Attorney General, Edmund E. Shephard, Solicitor General, Lansing, Harry W. Jackson, Assistant Attorney General, Edward A. Jacob, Special Assistant Attorney General, for plaintiff and appellant.

James E. Haggerty, Detroit, for defendant and appellee.

Before the Entire Bench.

CARR, Justice.

The matters here involved arise out of a prosecution pending against defendant in the circuit court of Macomb county on a charge of having violated C.L.1948, § 750.118, Stat.Ann. § 28.313. Said section reads as follows:

'Any executive, legislative or judicial officer who shall corruptly accept any gift or gratuity, or any promise to make any gift, or to do any act beneficial to such officer, under an agreement, or with an understanding that his vote, opinion or judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or that in such capacity, he shall make any particular nomination or appointment, shall forfeit his office, and be forever disqualified to hold any public office, trust or appointment under the constitution or laws of this state, and shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years, or by fine of not more than 5,000 dollars.'

The information filed in the case alleges that on or about the 15th day of September, 1942, the defendant was the duly elected and qualified prosecuting attorney of Macomb county, and that he accepted a specified sum of money from one Arthur Sauve under an agreement and understanding that 'his judgment and decision would be given in favor of allowing illegal gambling to operate in said county.' It was further alleged that it was the duty of defendant in his official capacity to prosecute violators of the laws against gambling. A second count in the information was stricken on the order of the trial judge, and is not involved in this proceeding.

On the opening of the trial in circuit court certain issues were raised before the trial judge. Claiming that the disposition thereof was erroneous, the attorney general has sought and obtained leave to appeal. The questions referred to involved (1) a motion to strike from the information the names of certain witnesses indorsed by the prosecuting attorney, and (2) an order of the trial judge, made on defendant's motion, striking from the record a bill of particulars filed by the people.

It is conceded that all of the witnesses, three in number, whose names defendant sought to have stricken are deceased. The record indicates that the prosecutor indorsed them on the information in order to permit the people to offer on the trial of the pending case the testimony given by these witnesses in a prior prosecution of defendant under an information charging criminal conspiracy. The trial judge did not enter a formal order on the motion but indicated, in the following language, the position taken by him:

'I will decline to allow you to add their names or read their testimony because it is my opinion that you are running squarely into the constitutional proposition that in a criminal case the defendant must be confronted with his witnesses.

'* * *

'They are on the information. So we will understand what the situation would be when the time comes to call the names, you will just simply say you can't produce them, they are dead.

'* * *

'If they can't be produced, that's all there is to it.'

On behalf of the people it is claimed that the court ruled in effect that the testimony is inadmissible. Defendant, although suggesting that the absence of a formal order precludes review by this court, argues in his brief the merits of the issue. Without reference to the technical aspects of the situation, we think the matter is one on which this court may properly pass in view of the situation that is presented to us on the record.

Under article 2, § 19, of the State Constitution, the defendant in a criminal prosecution is entitled 'to be confronted with the witnesses against him.' On behalf of defedant it is urged that the admission of the testimony in question would violate the constitutional guaranty. C.L.1948, § 768.26, Stat.Ann. § 28.1049, provides that: 'Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.' The language of the statute must, of course, be construed to accord with the provision of the Constitution above quoted. It will be noted that it contains no reference to testimony taken in any case other than the pending prosecution. This court has repeatedly pointed out in prior decisions that when the defendant, on a former trial or on the preliminary examination in the cause, had been given the opportunity to cross-examine, the constitutional requirement was satisfied, and the testimony was admissible on proper showing of inability to produce the witness on the trial. See People v. Hunley, 313 Mich. 688, 21 N.W.2d 923, and prior decisions there cited.

In several decisions language has been used indicating that, in order to render such testimony competent, defendant must have been confronted with the witness at some stage of the pending case. Thus in People v. Schepps, 217 Mich 406, 414, 186 N.W. 508, 511, 21 A.L.R. 658, the court, in holding admissible the testimony given by a witness on the preliminary examination in the case, the witness having disappeared, said in part: 'In this very case, upon the same issue at the preliminary hearing, defendant was confronted by the witness, and by his counsel availed himself of the opportunity for full cross-examination.'

The following statement in 10 RCL, p. 968, was quoted with approval: 'The prevailing view is that the right of confrontation is satisfied, in cases of necessity if the accused has been once confronted by the witness against him in any stage of the proceedings upon the same accusation, and has had an opportunity of a cross-examination, by himself or by counsel, in his behalf.' Of like import is People v. DeWitt, 233 Mich 222, 206 N.W. 562, in which it was held that testimony taken at a coroner's inquest was not competent in a subsequent criminal prosecution. See also People v. Moore, 306 Mich. 29, 10 N.W.2d 296.

In Shaw v. United States, 8 Cir., 1 F.2d 199, 201, testimony of a witness given at a trial on an indictment subsequently held defective was offered in evidence on a second trial under a new indictment for the offense, and was received, it being made to appear that the witness was deceased. Defendant objected to the competency of the testimony on the ground that it had not been taken in the same case. In holding that the objection was not well taken, the circuit court of appeals of the eighth circuit discussed the legal proposition involved with reference to the right of confrontation of witnesses in a criminal case as declared in the Sixth Amendment to the Federal Constitution, saying in part: 'The former indictment was held to be defective, and a new indictment was returned. The case was the same and between the same parties; the charges in both indictments were that defendant had made false entries in the books, and had embezzled certain moneys, of the Citizens' National Bank of Hot Springs, Ark. In short, though the first indictment was bad and a new one had to be procured, it was yet the same case. The mere fact, for example, that in a given civil case a petition may be held bad on demurrer, or held bad by an appellate court, or upon motion in arrest, and require amendment, does not mean that, when amended, the case becomes a wholly different case. The difference merely lies, as between a civil case and criminal case, in the manner in which the amendment must be made. In a civil case it may be amended by the plaintiff sua sponte; but in a criminal felony the amendment must be made by procuring the return of a good indictment, by a grand jury. In case of a misdemeanor the similarity is seen to be even more opposite, because the district attorney may file an amended information without recourse to a grand jury. So much is said only upon the contention that the necessity of procuring a new and good indictment had the effect to change the cause of action; for it is yet held in mind that the rule of confrontation does not apply to a civil case, but does apply to a criminal prosecution. If it be, then, as we hold it is, the same case, as it obviously is upon the same charge and between the same parties, the court committed no error in admitting the former testimony of the deceased witness. The courts hold that such testimony is admissible upon a second criminal trial upon the same accusation (People v. Gilhooley, 108 App.Div. 234, 95 N.Y.S. 636), on the same issue and between the same parties (Vaughan v. State, 58 Ark. 353, 370, 24 S.W. 885; State v. De Witt, 2 Hill, 282, 27 Am.Dec. 371), where the same issues are involved (Thompson v. State, 106 Ala. 67, 17 So. 512), and upon a trial of the same case (Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409). All of the required unities, then, being present, the point is not well taken.'

In the case at bar the situation is not analogous to that in the Shaw Case or in any of the other cases cited in which the testimony in issue was held competent. We have here separate prosecutions for distinct offenses. While the information in the prior case is not included in the record before us, it may be assumed that the primary...

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    ...(passing of other bad checks);People v. Allen, 351 Mich. 535, 88 N.W.2d 433 (1958) (proof of previous safe-breaking);People v. Johnston, 328 Mich. 213, 43 N.W.2d 334 (1950) (other acts of bribery and conspiracy);People v. Wright, 315 Mich. 81, 23 N.W.2d 213 (1946) (proof of previous holdup ......
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    ...have previously held that the prosecution may prove intent by offering evidence of a continuing course of conduct. People v. Johnston, 328 Mich. 213, 43 N.W.2d 334 (1950). Johnston involved payments to a prosecuting attorney for protection of houses used for gambling and prostitution. Evide......
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