People v. Keiswetter

• Decision Date: 10 July 1967
• Docket Number: No. 3,Docket No. 2355,3
• Citation: 151 N.W.2d 829,7 Mich.App. 334
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Thomas D. KEISWETTER, Defendant and Appellant
• Court: Court of Appeal of Michigan — District of US

Page 829

151 N.W.2d 829

7 Mich.App. 334

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Thomas D. KEISWETTER, Defendant and Appellant.

Docket No. 2355.

Court of Appeals of Michigan, Division No. 3.

July 10, 1967.

As Amended on Denial of Rehearing Sept. 20, 1967.

Leave to Appeal Denied Dec. 12, 1967.

Philip A. Gillis, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Wayne Richard Smith, Pros. Atty., Emment County, Petoskey, for appellee.

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

HOLBROOK, Judge.

In September 1965, defendant, Thomas D. Keiswetter, was convicted by a jury of the offense of involuntary manslaughter by the operation of an automobile. The charge in the information is set forth in the footnote. ¹

The testimony introduced by the people evidenced the following facts: That on May 22, 1965, defendant, then of the age of 19 was the owner of a 1958 Ford automobile. In the late afternoon of that day around 5:30 p.m., defendant Keiswetter went to the apartment of Donald Swanson. During the early evening hours, a number of persons were present at the apartment and intoxicants were consumed by defendant and others. At approximately 8:30 p.m. defendant together with Donald Swanson and Robert Barrett left the apartment taking beer with them and placing it in Keiswetter's car. Defendant drove the automobile and they were bound for the Club Ponytail, proceeding on Michigan street in a westerly direction and turned north one block on to east Mitchell street. They then proceeded easterly on Mitchell street for several blocks stopping in front of Karamol's tavern in downtown Petoskey. Robert Barrett left the car and returned with a dozen bottles of beer. then with Keiswetter driving, Swanson sitting in the middle of the front seat and Barrett sitting in front next to the right window, the vehicle was driven easterly on Mitchell street. Beginning approximately one block from Karamol's tavern, Mitchell street becomes a hill 3 blocks in length until it intersects Lockwood avenue. At this point, the grade becomes slight and fairly level. The Keiswetter vehicle climbed the Mitchell street hill, traveling about 60 miles per hour as it came over the crest of the hill. Eighty-five feet east of the intersection of Mitchell and Ottawa which is located one block east from the crest of the hill, the left front of the Keiswetter vehicle struck the right side of a 1965 Mustang driven by Warren P. Townes. The Mustang had just previously turned on to Mitchell street from Ottawa street to travel east on Mitchell, had completed its turn and was in the left lane of Mitchell street next to the center line. The Mustang had made a slow, normal turn and its driver and occupant had both made observations prior to entering Mitchell street and saw nothing coming. The Keiswetter Ford passed the Mustang on the right after striking it and continued on at a high rate of speed another 368 feet, through the intersection of Mitchell and Kalamazoo avenues. This intersection was controlled by a stop sign and a flashing red light. Keiswetter ran through this intersection, crossing the center of the street and struck almost head on a 1962 Chevrolet station wagon owned and driven by Forrest G. Kauffman which was about to stop at the intersection and was facing in a westerly direction on Mitchell street in its own proper lane. Elise Grace Kauffman, a passenger in her husband's vehicle, was killed almost instantly as a result of the collision. After impact the Kauffman vehicle was driven backwards 63 feet over the curb on Mitchell street. The Keiswetter car continued on, striking another west bound car before coming to a stop. Keiswetter's passenger, Donald Swanson, fled the scene. Passenger Robert Barrett was thrown from the car and driver defendant Keiswetter was found lying on the front seat. The speed limit on Mitchell street was 25 miles per hour. Numerous witnesses estimated Keiswetter's speed at 60 miles per hour prior to and after the impact with the Mustang.

On October 11, 1965, after conviction, defendant made a motion for a new trial. A hearing was held November 5, 1965, with testimony taken from Robert Barrett in support of defendant's motion. The motion for new trial was denied on January 11, 1966, and defendant was sentenced to a term of 1 to 15 years in prison. Thereafter, a supplemental motion for new trial was filed on April 18, 1966. After a hearing, the trial court denied the same on May 31, 1966. Defendant thereupon appealed to this Court.

Defendant raises several issues which will be considered in proper order.

1. Was there sufficient evidence presented to support a conviction of involuntary manslaughter?

The people were required to prove and beyond a reasonable doubt that defendant caused the death of Mrs. Kauffman due to the operation of his automobile. The information charged defendant with gross negligence and the people were required to prove the following 3 elements present: (a) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (b) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; and (c) the omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must have been apparent that the result was likely to prove disastrous to another.

A review of the record and the testimony enumerated herein satisfies us that there was ample evidence to prove defendant guilty of gross negligence and if believed by the jury to justify the verdict of guilty of involuntary manslaughter.

2. Where an information for involuntary manslaughter does not charge the defendant's intoxication, is it error to admit evidence of the defendant's drinking and submit this to the jury in proof of his negligence?

Counsel for defendant did not object to the testimony nor to the instruction of the court. We presume evidence admitted was lawfully admitted where no proper objections were made at the trial. People v. Jury (1966), 3 Mich.App. 427, 142 N.W.2d 910; People v. Robinson (1955), 344 Mich. 353, 74 N.W.2d 41.

To consider the question of propriety of an instruction given to the jury, the party raising such an objection must have preserved that right by timely objection at the trial level. This, the defendant did not do. Nuccio v. Severini (1965), 374 Mich. 189, 132 N.W.2d 172.

In any event, we conclude and rule that the fact that defendant was drinking was a part of the Res gestae. Case v. Vearrindy (1954), 339 Mich. 579, 64 N.W.2d 670.

3. Was it error for the prosecution in the presence of the jury to offer indorsed witnesses to the defendant for cross-examination and to state that their testimony would be cumulative?

Defendant did not object to this procedure on trial. It was advanced as error for the first time in defendant's supplemental motion for new trial.

The trial judge in ruling on this issue stated as follows:

'The court finds that while the procedure thus followed was irregular and the remark made by the prosecuting attorney that the testimony of the witnesses so offered would be cumulative should not have been made, no serious prejudicial error was committed thereby. People v. Ruggero, 223 Mich. 368 (193 N.W. 861), cited by counsel as controlling, is clearly distinguishable from the case at bar. In Ruggero, a morals case, the testimony of the complainant child was uncorroborated. The State rested its case upon the sole testimony of the child and then made the offer of three witnesses indorsed on the information for cross-examination. The offer thus made, where the witnesses were not afterwards called, was held prejudicial, although the court instructed the jury to disregard the incident.

'The people here presented six direct witnesses who testified to the happenings on Mitchell street near Ottawa on the evening in question. The offer of several additional witnesses for cross-examination in the presence of the jury under the circumstances was not prejudicial.'

We point out also that counsel for defendant evidently did not believe it to be prejudicial at the time of trial for he did not object at that time nor did he raise it as a reason for granting a new trial in his first motion.

This error is not a ground for reversal or granting a new trial unless we find after an examination of the entire cause that it affirmatively appears that it has resulted in a miscarriage of justice. C.L.1948, § 769.26 (Stat.Ann.1954 Rev. § 28.1096); People v. Wilcox (1942), 303 Mich. 287, 6 N.W.2d 518; People v. Medcoff (1955), 344 Mich. 108, 73 N.W.2d 537; People v. Ritholz (1960), 359 Mich. 539, 103 N.W.2d 481. Under the facts in this case we agree with the trial judge's determination that the error was not prejudicial nor did it result in a miscarriage of justice.

4. Defendant asserts that inasmuch as the information did not specifically charge defendant with having committed unlawful acts it was error for the trial judge to instruct the jury that they may convict on the basis of unlawful acts committed by the defendant.

No objections were made to the instructions in question at the trial as required by GCR 1963, 516.2 and therefore this asserted error cannot be raised in this Court at this time unless we determine justice so requires. People v. Limon (1966), 4 Mich.App. 440, 145 N.W.2d 287; People v. Willis (1965), 1 Mich.App. 428, 136 N.W.2d 723. Also, see People v. Cassiday (1966), 4 Mich.App. 215, 144...