People v. Kregger

• Decision Date: 05 January 1953
• Docket Number: No. 93,93
• Citation: 56 N.W.2d 349,335 Mich. 457
• Parties: PEOPLE v. KREGGER.
• Court: Michigan Supreme Court

Page 349

56 N.W.2d 349

335 Mich. 457

PEOPLE v. KREGGER.

No. 93.

Supreme Court of Michigan.

Jan. 5, 1953.

Roy H. Hagerman, Sturgis, Caleb F. Enix, White Pigeon, and Harold J. Ashdown, Coldwater, for appellant.

Harold F. Bristol, Pros. Atty. for Branch County, Jack R. Sutherland, Asst. Pros. Atty. for Branch County, Coldwater, for appellee.

Before the Entire Bench.

CARR, Justice.

Defendant was prosecuted in the circuit court of Branch county for the felonious killing of his wife. The jury returned a verdict of guilty of murder in the first degree and the sentence required by statute was imposed. C.L.1948, § 750.316, Stat.Ann. § 28.548. A motion for a new trial was made and denied. Defendant has appealed, claiming that errors committed in the course of the proceedings in the trial court were of such character as to require a reversal of the conviction and judgment and the granting of a new trial.

The trial of the case began on the 19th of September, 1950. Following the convening of court the trial judge inquired if the parties were ready. Receiving affirmative answers, he then directed the clerk to proceed with the drawing of a jury. The names of 12 jurors were called. They took their places in the jury box and were duly sworn to make true answers to questions touching their qualifications to serve as jurors on the trial. The judge then read the information, which had previously been read to defendant at the time of his arraignment. Inquiry was them made by the judge to ascertain if the defendant was in the courtroom. It being found that he was not present, it was ordered that he be brought immediately before the bar of the court, and no further proceedings were had until compliance with such direction. The trial judge then proceeded to explain to the jury the nature of the case before them for trial, and to conduct an examination of individual jurors for the purpose of ascertaining any disqualifications that might exist. Counsel on both sides were also permitted to inquire and to exercise challenges for cause and also peremptory challenges.

A jury was finally selected without either side having exercised the full number of peremptory challenges permitted by statute, only one of the first 12 jurors called being retained. No objection was made in defendant's behalf to proceeding after he was brought into the courtroom, nor was there any request that the 12 jurors in the box should be excused and the task of drawing a jury started anew. Following the conviction a motion was made and granted to amend the court journal in such manner as to show the absence of defendant from the courtroom when the first 12 jurors were drawn and sworn. The motion for a new trial assigned as one of the grounds thereof that defendant was not present at the time the first jurors were called and sworn to make true answers as to their qualifications. It was asserted in substance that defendant's rights under C.L.1948, § 768.3, Stat.Ann. § 28.1026, had been violated. Said section reads as follows:

'No person indicted for a felony shall be tried unless personally present during the trial; persons indicted or complained against for misdemeanors may, at their own request, through an attorney, duly authorized for that purpose, by leave of the court, be put on trial in their absence.'

On appeal it is urged on behalf of defendant that he was deprived of his statutory and constitutional rights because of the action taken prior to his being brought into court. It is insisted that the drawing and swearing of the 12 jurors was a part of the trial, that defendant was wrongfully deprived of the right expressly recognized by the statute quoted, and that as a further consequence there was a lack in the proceeding of due process of law guaranteed by State and Federal Constitutions. It is the position of counsel for the people that what occurred in the courtroom prior to defendant's entrance was wholly of a preliminary nature, and that defendant was not in any way prejudiced thereby.

Our attention is not called to any prior decision of this Court involving facts of the precise nature presented here. Analogous questions, however, have been raised and determined. In People v. Raider, 256 Mich. 131, 239 N.W. 387, an officer who accompanied the jury when viewing the premises where the crime was allegedly committed pointed out to the jurors the location of certain scales that had been mentioned in the testimony of witnesses on the trial. The claim that this was done in the absence of the defendant was disputed. The trial court did not determine the fact but held that there was no reversible error because the matter was trivial. On appeal this Court sustained the action of the trial judge in denying a motion for a new trial on the basis of the claimed error, saying in part:

'But as the testimony regarding the scales came in only by way of impeachment of a witness, was not an important factor in the case, and it is apparent the incident was not prejudicial to defendant , C.L.1929, § 17354; 16 C.J. p. 1162, defendant's counsel was a witness to it and made no objection before verdict, 16 C.J. p. 1123; People v. Johnson, 110 N.Y. 134, 17 N.E. 684; State v. High, 116 La. 79, 40 So. 538, and evidently did not consider it of sufficient importance to call it to the attention of the court, People v. Kasem, 230 Mich. 278, 203 N.W. 135, refusal of the court to grant a new trial upon this basis was not an abuse of discretion.' 256 Mich. at page 138, 239 N.W. at page 390.

It may be noted in passing that the statute above cited, C.L.1929, § 17354, is C.L.1948, § 769.26, Stat.Ann. § 28.1096. The purpose of the enactment of said section was undoubtedly to obviate the necessity of a new trial in a criminal case in which no miscarriage of justice resulted from a procedural error. As further illustrating the proposition that a conviction should not be set aside because of trivial and non-prejudicial errors, see People v. Hahn, 214 Mich. 419, 183 N.W. 43; People v. Budd, 279 Mich. 110, 271 N.W. 577. In 23 C.J.S., Criminal Law, § 974, page 305, the following statement is made:

'* * * where substantial rights are not thereby affected, accused's presence is not ordinarily necessary during earlier proceedings relating to the selection of the jury.'

Decisions from other jurisdictions sustaining such proposition include People v. Johnston, 140 Cal.App. 729, 35 P.2d 1074. There jurors were called before the defendants were brought into the courtroom, and it was contended on appeal that such action deprived them of due process of law. In rejecting the argument the court referred to Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262, in which it was held that the absence of the defendant while challenges to certain jurors were being tried deprived him of his right to be present during the trial as guaranteed by a statute of the jurisdiction (the Territory of Utah) and was in consequence reversible error. Holding that the 'substantial rights' of the defendant in the case before it were not prejudiced by what occurred, the California court said in part:

'Here the acts of the clerk in swearing the jurors to answer questions touching their qualifications and calling the names of three jurors were ministerial acts in no way affecting the substantial rights of defendants. The opportunity was expressly afforded them by the court, while they were personally present to have the clerk repeat these formal acts, and defense counsel then declared, 'he don't need to go back.' The inchoate objection which counsel started to interpose relating to the drawing of names until a full panel was present or their absence explained could not be considered as an objection for any purpose, and was properly disregarded by the court. No objection of that import was made when defendants were in court. The attention of the trial judge was not directed to any invasion of defendants' rights which counsel was thus attempting to safeguard. On appeal it is not urged that defendants had exhausted all of their peremptory challenges or that they interposed a challenge for cause to any juror thus called or selected and that such challenge had been disallowed.' [140 Cal.App. 729, 35 P.2d 1075.]

Under the facts in the case at bar it must be said that there was no material or substantial prejudice resulting to defendant because he was not present in court when the first 12 jurors were called to the box and sworn. At the time his counsel, who were able and experienced attorneys, did not consider that their duty to their client required them to make an objection to proceeding, or to insist that the jurors in the box be excused, their names returned to the clerk's box, and the drawing started anew. It is significant that the jury was accepted although defendant's right to exercise peremptory challenges had not been exhausted. We are not in accord with appellant's claim that his conviction and sentence should now be set aside on the theory that there was a substantial invasion of his statutory or constitutional rights.

At the conclusion of the opening statement of the prosecuting attorney, following the selection of a jury, counsel for defendant moved to quash the information and dismiss the case, or, in the alternative, to confine the people's evidence to the date alleged in the information, February 6, 1950. The motion was denied, and appellant assigns error thereon. Presumably the statement of the prosecutor disclosed that testimony would be offered by the people for the purpose of showing that defendant shot his wife on January 29th, and that her death occurred on February 6th following. The information alleged the offense as committed 'to-wit: on the 6th day of February, A.D., 1950, at the City of Coldwater in the County of Branch.' It charged that defendant 'feloniously, wilfully and of his malice aforethought, did kill and murder one Anna Kregger.' It is claimed in appellant's behalf that the...