People v. Kenyon
| Decision Date | 28 July 1892 |
| Citation | 52 N.W. 1033,93 Mich. 19 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. KENYON. |
Exceptions from circuit court, Kent county; ALLEN C. ADSIT, Judge.
Ephraim G. Kenyon was convicted of assault and battery, and brings exceptions. Verdict set aside, and new trial granted.
Stace & Quinsey, for appellant.
A A. Ellis, Atty. Gen., and W. F. McKnight, Pros. Atty., for the People.
Kenyon was convicted of assault and battery upon one Matthias Miller, in the Kent circuit court, upon appeal from justice court. He comes to this court upon exceptions before sentence. It was insisted in the justice court, as well as in the circuit, that the justice had no jurisdiction, because no return of the warrant was ever made in the justice court. It appears that a warrant was issued upon a proper complaint and that it was served by a deputy sheriff, and the respondent arrested and brought before the justice by virtue of it. The return appears upon the warrant in proper form but is not signed by any one. The objection was made before the justice that he had no jurisdiction because this return was not signed, and overruled by him. It would have been competent then and there for the deputy sheriff to have signed the return, but he did not do so. This omission could not affect the jurisdiction of the justice. It appears from his return, and also from his docket, that the respondent was brought before him by a deputy sheriff upon a lawful warrant duly issued, and thereupon arraigned before him. The omission to sign the return upon the warrant could in no way affect the rights of the respondent, or oust the justice of jurisdiction, when it clearly appears, and is not denied, that he was arrested and brought before the justice by an officer by virtue of a lawful warrant, and, further, that he pleaded not guilty to the accusation contained in such warrant, and made no motion to dismiss the cause on account of the defective return until the adjourn day, nearly a week after his arraignment.
The assault grew out of a visit of Miller to the home of respondent to present him a petition to lay out a drain. The petition was not read to respondent or by him. He ordered Miller off his premises, and the affray occurred while Miller was leaving respondent's place, but upon his land. The petition was produced by Miller while on the stand as a witness, and handed to the prosecuting attorney. The witness gave no testimony as to the contents of the petition, except that it was for the opening of a drain. He also testified, on cross-examination, that he presented the same petition to the township drain commissioner, and that he afterwards filed another petition. He was then asked by defendant's counsel if the commissioner did not refuse to act upon the first petition. This question was ruled out. Defendant's counsel also asked for the production of the petition, for the purpose of cross-examination. This request was denied. There was no error in these rulings. The contents of the petition were not material. What was done with the petition afterwards had no relevancy to the issue.
The court was in error, however, in permitting the people to afterwards show by Miller why he abandoned the first petition, and drew up and circulated another, which was acted upon. The respondent was entitled to the same latitude as the people in this respect. If Miller's and the commissioner's actions were material, then the inquiry was open to the defense equally with the prosecution.
A similar error was committed by the court in another respect. Upon the cross-examination of Miller, the defendant's counsel inquired of him as to his quarrelsome disposition, and as to how many other fights he had been engaged in while a resident of this state. The witness said he would want time-a couple of days-to state them all: Under an objection of the prosecuting attorney, the circuit judge said: "This is going too far; there is a limit to all things; we must cut this thing short,"-and ruled the question out. Upon the cross-examination of the respondent, the prosecutor was permitted not only to go into his quarrels with other persons for years, but also into all the litigation in which he had been engaged for many years. It was claimed by the defense that Miller was the aggressor, and it was shown that defendant had sued and recovered judgment against him for damages on account of assault and battery growing out of this same transaction, which judgment Miller had paid without appeal. If the quarrelsome disposition of one was in issue, so equally was that of the other. The fact that Miller was the complaining witness-the one who claimed that an assault had been committed upon him-gave him no advantage in this respect over the respondent. They were on the same level as witnesses.
The people rested their case without calling one Marie Gould as a witness. She was sworn as a witness for the prosecution in justice court, and it is claimed saw part of the affray. The defendant...
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