People v. Kayne
| Decision Date | 02 July 1934 |
| Docket Number | No. 151.,151. |
| Parties | PEOPLE v. KAYNE. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Recorder's Court of Detroit; Donald Van Zile, Judge.
Samuel A. Kayne was convicted of obtaining money under false pretenses, and he appeals.
Judgment and verdict set aside, and new trial ordered.
Argued before the Entire Bench.
Harry Cohen, of Detroit, for appellant.
Patrick H. O'Brien, Atty. Gen., and Harry S. Toy, Pros. Atty., and Chester P. O'Hara and Edmund E. Shepherd, Asst. Pros. Attys., all of Detroit, for the People.
Defendant was convicted of obtaining money under false pretenses. According to the people's theory, the scheme by which defendant obtained money under false pretenses was as follows: Defendant, the owner of an automobile, carried automobile insurance in the Commercial Casualty Insurance Company. It was arranged that Mrs. Harry Bluestein was to be at the intersection of certain streets in the city of Detroit at the time defendant drove his automobile around the corner, and she was supposed to have been struck and injured by defendant's machine. Defendant put her in his automobile, took her to her home, and assisted her into the apartment where the Bluesteins resided. A Dr. Atler was called by Charles Schnitzer, who is claimed to have planned the details of the offense charged. Before the doctor arrived Schnitzer applied iodine to certain portions of Mrs. Bluestein's body to give the appearance of a bruised and injured condition. Dr. Atler attended Mrs. Bluestein the same evening of the supposed accident, prepared surgical dressings, applied bandages, and attended her for some time thereafter. The woman's right shoulder was encased in a dressing of adhesive plaster and bandages, fixing the right arm close to the side; her ribs were taped and one of her knees treated by the doctor. Defendant notified the insurer of the accident. An investigation was made, physical examination of Mrs. Bluestein by the insurance company's physician, settlement agreed upon, and $362.50 paid by draft to the order of Mr. and Mrs. Bluestein. This draft was delivered to Schnitzer. Of this amount, it is claimed defendant received $104, the Bluesteins $100, and Schnitzer received the balance out of which the doctor's bill and other expenses were paid. Mr. and Mrs. Bluestein and Schnitzer were witnesses for the prosecution, and testified in support of its theory of the case.
The defense urged was that the injury actually happened to Mrs. Bluestein, that the accident was a fact, not fiction, as claimed by the people. The further claim was made that Schnitzer, prompted by ulterior motives, has ‘framed’ this case against defendant.
The first ground of appeal discussed in appellant's brief is that the trial court erred in denying defendant's motion to indorse on the information the name of Dr. Atler as a witness for the people, after it appeared that he was a material witness and no privileged communication existed. Three days before the trial defendant made a motion to have the name of this witness indorsed on the information. This application was denied by the court on the ground that any communications between the doctor and the patient arose from a confidential relationship, were privileged, and the doctor could not be compelled to testify. At the trial, Mrs. Bluestein voluntarily testified in behalf of the people and in accordance with their theory of the case. having waived any right she might have asserted as to self-incrimination. Having so testified, she waived the right to assert a claim of privileged communication as against testimony that might be given by Dr. Atler. Hamilton v. People, 29 Mich. 173;People v. Van Alstine, 57 Mich. 69, 23 N. W. 594;People v. Gallagher, 75 Mich. 512, 42 N. W. 1063. A further motion was made by defendant after Mrs. Bluestein had testified to have Dr. Atler indorsed as a people's witness. This application was denied on the ground that the doctor's testimony would be immaterial. In the people's brief it is now urged that, regardless of the reason given, the trial court's ruling was correct because the doctor was not a res gestae witness. In this connection it is pointed out that the doctor visited Mrs. Bluestein ‘several hours after the supposed event,’ and for this reason could not be a res gestae witness. We think the prosecution's position cannot be sustained under the facts in the instant case. According to the theory of the prosecution, an indispensable portion of the people's case was proof that Mrs. Bluestein's claimed personal injury was fictitious; that it was not an actual injury as claimed by defendant. Aside from Mrs. Bluestein, no one could have had much more definite knowledge of this phase of the case than Dr. Atler. Only shortly after defendant claims the accident happened the doctor saw and treated Mrs. Bluestein because of her actual or feigned injury. If there was an attempt to secure money by false pretense, her feigned injured condition was a necessary part of the criminal scheme. Such was the theory of the people's case. On the other hand, if Mrs. Bluestein was actually injured, as claimed by defendant, the attending physician must have had knowledge of such fact. The doctor was an eyewitness, not of the accident, but of the physicial injuries, real or feigned, incident to which the insurance company made the payment of the money alleged to have been obtained by false pretense. The physician employed by the insurance company, Dr. Naylor, when investigating this case, ‘called up’ Dr. Atler. The details of the interview are not in the record. But as charged in the information and according to the prosecution's theory and testimony, Mrs. Bluestein, as well as her husband and Schnitzer, joined defendant in committing the crime charged; and therefore her acts and statements at the time are clearly part of the res gestae, and evidence thereof was admissible against each of the other joint wrongdoers. St. Clair v. U. S., 154 U. S. 134, 149, 14 S. Ct. 1002, 38 L. Ed. 936. By being called to attend Mrs. Bluestein, Dr. Atler, innocently or otherwise, was present at and a party to a material part of the transaction which went to make up the fraud charged. He was a res gestae witness.
‘Res gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.’ Stirling v. Buckingham, 46 Conn. 461.
...
To continue reading
Request your trial
-
People v. McGraw
...only the elements of the offense, but also the body of facts necessary to prove and support those elements. See, e.g., People v. Kayne, 268 Mich. 186, 255 N.W. 758 (1934); People v. Sholl, 453 Mich. 730, 556 N.W.2d 851 (1996). A leading treatise concisely explains the res gestae The res ges......
-
People v. Pearson
...accusations and preserve his presumption of innocence. People v. Harris, 43 Mich.App. 531, 204 N.W.2d 549 (1972); People v. Kayne, 268 Mich. 186, 255 N.W. 758 (1934). In essence, the obligation of res gestae witness production is derivative of a defendant's constitutional right to a fair tr......
-
People v. Harrison
...a fair presentation of the circumstances surrounding the alleged crime cannot otherwise be made to the court or jury. People v. Kayne, 268 Mich. 186, 255 N.W. 758 (1934); People v. Bartlett, 312 Mich. 648, 20 N.W.2d 758 Thus, for example, in a prosecution for a murder which occurred during ......
-
People v. Jackson
...definition reflects, the concept of “res gestae” evidence is inherently indefinite and malleable. See, e.g., People v. Kayne, 268 Mich. 186, 192, 255 N.W. 758 (1934) (noting that “[n]o inflexible rule has ever been, and probably one never can be, adopted as to what is a part of the res gest......