People v. Kindra

• Decision Date: 25 September 1894
• Citation: 102 Mich. 147,60 N.W. 458
• Court: Michigan Supreme Court
• Parties: PEOPLE v. KINDRA.

60 N.W. 458

102 Mich. 147

PEOPLE v. KINDRA.

Supreme Court of Michigan

September 25, 1894

Exceptions from superior court of Grand Rapids; Edwin A. Burlingame Judge.

William H. Kindra was convicted of keeping his saloon open after hours, and excepts. Affirmed.

A. A. Ellis, Atty. Gen., and Alfred Wolcott, Pros. Atty., for the People.

Griffin McDonald & La Grou, for defendant.

LONG J.

The respondent was arrested and tried before the superior court of Grand Rapids for keeping his saloon open on the night of June 24, 1893. At the time in question, the respondent was running an hotel and saloon in the city of Grand Rapids; and on the evening of that day, a dance was in progress in the hall upstairs in the same building. The dance was concluded about 11 o'clock. On the part of the prosecution, it is claimed that, after the dance, the witnesses Stoutjesdyk, Price, and Rittenberg, together with Lou Thayer and her sister and one May Wyman and several others, came down from the dance hall, and got some beer in the small room back of the main barroom, which beer was paid for by Stoutjesdyk. The people, after swearing the witnesses Stoutjesdyk, Price, and Rittenberg, rested their case. These witnesses had testified that, after 11 o'clock, they, in company with these women, went into the room back of the barroom kept by respondent, and there purchased lager of respondent's barkeeper. The names of the women were not placed on the information. Respondent thereupon insisted upon their being produced as witnesses by the people, and that their names be placed upon the information. The court declined to order the people to place their names upon the information, but had subpoenas issued for them. The witnesses not begin found, after waiting two hours, the court directed the respondent to proceed with his defense. He did proceed, and examined eight witnesses, who all testified that the saloon was not open upon the night in question, and that no liquors were sold there that night after the hour of closing. After the defense rested, the witness May Wyman, whom the defense had insisted should be produced by the people, was found, and called into court, and examined on the part of the people. Her testimony corroborated the people's witnesses, but was taken under defendant's objection, who now claims that her testimony was more prejudicial to the respondent than it would have been had it been taken earlier in the case.

We think the court was not in error in denying the motion to place the names of these witnesses upon the information. It is evident that the people had not failed to put all parts of the transaction before the jury by the testimony of the three witnesses called to sustain the prosecution; that the introduction of the testimony of the other witnesses would have been merely cumulative. It is true that the prosecutor in a criminal case is not at liberty, like the plaintiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then put the defendant to the proof of the other part, so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed, especially if it appear to the court that the evidence of the other portion is attainable. If the facts stated by the witnesses who are called show prima facie or even probable reason for believing that there are other parts of the transaction to which they have not testified, and which are likely to be known to other witnesses present at the transaction, then such other witnesses should be called by the prosecution, if attainable. Hurd v. People, 25 Mich. 415....