People v. Kelsey
| Decision Date | 23 December 1942 |
| Docket Number | No. 102.,102. |
| Citation | 7 N.W.2d 120,303 Mich. 715 |
| Parties | PEOPLE v. KELSEY. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
James H. Kelsey was convicted of manslaughter, and he appeals.
Reversed and remanded for new trial.
Appeal from Circuit Court, Kalamazoo County; George V. Weimer, Judge.
Before the Entire Bench.
Warner, Norcross & Judd and Joseph Shulsky, all of Grand Rapids, for appellant.
Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., and Raymond W. Fox, Pros. Atty., of Kalamazoo, for appellee.
Defendant appeals from a conviction and sentence for the crime of manslaughter resulting from an abortion alleged to have been performed on one Betty Avery.
The only testimony directly connecting respondent with the alleged offense was that of one Henry Lubking who testified that he drove the deceased from her home in Kalamazoo to respondent's office in Cassopolis for the purpose of having the alleged illegal operation performed. Without detailing his testimony, it suffices to say that it tended to establish that the respondent was guilty of the crime charged. In contradiction to this testimony was that of respondent and two witnesses sworn in his behalf, which, if the jury had believed it, would have established an alibi.
Charles Struble, sheriff of Kalamazoo County, was called as a witness by the prosecution. On cross examination, while being questioned relative to certain instruments taken by him from respondent's office, the following testimony was elicited: Prompt objection was made to this testimony and the trial court instructed the jury that it should be disregarded, but refused to grant respondent's motion for a mistrial.
In view of the court's instruction to the jury, we do not believe that the unresponsive answer given by witness Struble resulted in reversible error. People v. Podsiad, 295 Mich. 541, 295 N.W. 257. A voluntary and unresponsive statement does not ordinarily constitute error. People v. Todaro, 253 Mich. 367, 235 N.W. 185. See also People v. Tutha, 276 Mich. 387, 267 N.W. 867.
Error is assigned because the court took preliminary testimony to determine the admissibility of a proffered dying declaration in the presence of the jury. The declaration was held to be inadmissible because it did not appear that the deceased sensed impending death at the time it was given. See People v. Christmas, 181 Mich. 634, 148 N.W. 369;People v. Bradfield, 300 Mich. 303, 1 N.W.2d 550. The same question was raised in People v. Cutler, 197 Mich. 6, 163 N.W. 493, wherein it was held to be discretionary with the trial court as to whether the preliminary testimony taken to determine the admissibility of such a declaration should be taken before the jury. We recognize, however, a lack of harmony in the authorities on the question (30 C.J. 267) but are not disposed to depart from our previously announced rule. Further, we find no abuse of discretion in connection with the trial court's disposition of this point.
During the trial, the witnesses were excluded from the court room. The respondent testified in his own behalf, and on cross examination, the prosecutor interrogated him relative to four other women by a series of questions which insinuated that he had performed abortions on these parties. In each instance, the reply would be either in the negative or that he did not know any party by that name. The woman would then be called into the court room and the cross examination continue, with the asking of questions such as the following, all of which were denied by respondent:
‘Q. Did you not in September of 1939, Doctor, perform a criminal abortion upon that young lady?
‘Q. Do you not recall asking that young lady when she was in your office, ‘How far along are you?’
‘Q. Don't you recall that young lady paying you ten dollars for performing a criminal abortion upon her?
‘Q. Well, now, Doctor, do you recall asking that young lady, ‘How did you get this way,-by being in a car that turned over and you were on the...
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Reetz v. Kinsman Marine Transit Co.
...N.W.2d 644 (1969). Similarly, see the criminal cases of People v. Ignofo, 315 Mich. 626, 636, 24 N.W.2d 514 (1946); People v. Kelsey, 303 Mich. 715, 718, 7 N.W.2d 120 (1942); People v. Holmes, 292 Mich. 212, 215, 290 N.W. 384 (1940); People v. Bigge, 288 Mich. 417, 420-421, 285 N.W. 5 (1939......
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People v. Crawl
...may, nevertheless, be considered on appeal include People v. Crittle, 390 Mich. 367, 370, 212 N.W.2d 196 (1973); People v. Kelsey, 303 Mich. 715, 719, 7 N.W.2d 120 (1942); People v. Holmes, 292 Mich. 212, 215, 290 N.W. 384 (1940); People v. Dorrikas, 354 Mich. 303, 326, 92 N.W.2d 305 (1958)......
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People v. DeGraffenreid
...search; the Supreme Court stated that, 'It cannot be said that it was not prejudicial to the defendant.'); People v. Kelsey (1942), 303 Mich. 715, 717--719, 7 N.W.2d 120; People v. Homes (1940), 292 Mich. 212, 214, 290 N.W. 384; People v. Dorrikas (1958), 354 Mich. 303, 326, 92 N.W.2d 305; ......
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...settled that the decision to grant or deny a motion for mistrial rests within the sound discretion of the trial court. People v. Kelsey, 303 Mich. 715, 7 N.W.2d 120 (1942); People v. Holly, 129 Mich.App. 405, 415, 341 N.W.2d 823 (1983). To constitute error requiring reversal in a criminal t......