People v. Kamischke
| Decision Date | 11 May 1966 |
| Docket Number | No. 3,No. 664,664,3 |
| Citation | 3 Mich.App. 236,142 N.W.2d 21 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Otto KAMISCHKE, Defendant-Appellant. Cal |
| Court | Court of Appeal of Michigan — District of US |
Thomas P. 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 T. G. KAVANAGH, P.J., and BURNS and McGREGOR, JJ.
Defendant Kamischke was charged with 'uttering and publishing a forged instrument'. (C.L.1948 § 750.249 (Stat.Ann.1962 Rev. § 28.446)). Defendant was arrested at a bar with Edward Maliszewski who was charged with a separate offense of 'uttering and publishing a forged instrument'. Each of the men was charged with passing a different one of a group of the same type of checks, stolen from the same place and with the identical payees and forged signatures. The offense charged occurred at different times and places.
At defendant Kamischke's trial, the jury included six members of the jury which had heard the trial of Maliszewski on the previous day. This defendant was brought into the trial of Maliszewski both by name and reference. 1 The jury found Maliszewski guilty. The evidence in the Maliszewski trial implied a scheme involving Kamischke.
The trial judge and the prosecuting attorney knew that some of the jurors had heard the previous day's trial. The trial court, in his voir dire of the proposed jury, after a juror had stated, '* * * we sat yesterday * * *', replied in part, . The voir dire record does not indicate any answers by the proposed jurors touching upon their qualifications or impartiality to sit as such jurors, or any instructions to such jurors by the trial court of any discernible method of replying to the voir dire questions. GCR 511.4(3)(4)(5)(7)(8). On two further occasions, such jurors volunteered the information that they had served on the previous day's trial; defense counsel did not make any challenges to such jurors, although he questioned them as to prejudice or bias against Mr. Kamischke due to hearing his name mentioned the day before in a similar case. The jurors who replied disclosed no bias.
From his conviction, this defendant appeals, alleging among other claimed errors that his federal and state constitutional rights to a trial by an impartial jury were violated.
Did the statements of these proposed jurors indicate their manifest concern with being unable to ignore the incriminating evidence of the previous day's trial and thereby be biased against the defendant, or have a positive opinion of the facts?
In People v. Troy (1893), 96 Mich. 530, 537, 56 N.W. 102, 104, defendant was convicted of the crime of assault with intent to do great bodily harm less than the crime of murder. It appears that on the night in question one Flanders and one Ottobein were engaged in a street fight, when a police officer appeared and arrested Flanders. While the officer was arresting Flanders, defendant Troy threw a stone and struck the officer. Defendant Troy was arrested, tried and convicted. During the same term in which defendant was brought to trial, seven of the jurors who sat in Flanders' trial were permitted, under objection, to sit in the case against Troy. In reversing the conviction, the Supreme Court said:
'We think, however, that the court erred in permitting the jury who sat in the Flanders' case to sit in the present. The facts are nearly identical, and must necessarily have all been called forth in the Flanders' trial. The jury in that case must have considered them, and reached some opinion as to the merits of the controversy in the present case. The respondent was entitled to a fair and impartial trial by an impartial jury, who had no preconceived opinions of his guilt or innocence. We are aware that some English and American authorities hold that jurors who have sat in one case are not disqualified from sitting in a case against another joint respondent, who has taken a separate trial, and involving...
To continue reading
Request your trial
-
People v. C.B. (In re C.B.)
...to administration of justice that trial judge be "acutely responsive" to task of supervising and controlling trial); People v. Kamischke, 142 N.W.2d 21, 24 (Mich. App. 1966) (trial courts are obliged to guard and enforce personal rights secured by state and federal constitutions). ¶ 137 My ......
-
People v. Jonathon C.B. (In re Jonathon C.B.)
...administration of justice that trial judge be “acutely responsive” to task of supervising and controlling trial); People v. Kamischke, 3 Mich.App. 236, 142 N.W.2d 21, 24 (1966) (trial courts are obliged to guard and enforce personal rights secured by state and federal constitutions). ¶ 137 ......
-
In re C.B. v. Jonathon C.B.
...to administration of justice that trial judge be "acutely responsive" to task of supervising and controlling trial); People v. Kamischke, 142 N.W.2d 21, 24 (Mich. App. 1966) (trial courts are obliged to guard and enforce personal rights secured by state and federal constitutions). My collea......
-
People v. Pribble
...defendant with the commission of the crime charged, and further, 'consists of twelve impartial men." People v. Kamischke, 3 Mich.App. 236, 240--241, 142 N.W.2d 21, 23 (1966), quoting from People v. DeHaven, 321 Mich. 327, 334, 32 N.W.2d 468 (1948). (Footnotes omitted.) (Emphasis An oath is ......