People v. Kynerd

• Court: Michigan Supreme Court
• Writing for the Court: REID
• Citation: People v. Kynerd, 314 Mich. 107, 22 N.W.2d 90 (Mich. 1946)
• Decision Date: 05 March 1946
• Docket Number: No. 67,June term, 1945.,67
• Parties: PEOPLE v. KYNERD.

314 Mich. 107

22 N.W.2d 90

PEOPLE

v.KYNERD.

No. 67, June term, 1945.

Supreme Court of Michigan.

March 5, 1946.

Appeal from Circuit Court Ingham County; Charles H. Hayden, judge.

Adolph Kynerd was convicted of assault with a dangerous weapon, and he appeals.

Affirmed.

SHARPE and BUSHNELL, JJ., dissenting.

Before the Entire Bench.

John Wendell Bird, of Lansing, for appellant.

John R. Dethmers, Atty. Gen., and Edmund E. Shepherd, Sol. Gen., Victor C. Anderson, Pros. Atty., and John P. O'Brien, Asst. Pros. Atty., all of Lansing, for the People.

REID, Justice.

Defendant Kynerd on May 21, 1943, was convicted of the offense of assault with a dangerous weapon committed on March 5, 1943. He was sentenced on June 4, 1943, to the State prison of southern Michigan for a term of not less than three nor more than four years. Defendant appeals from the judgment.

Defendant Kynerd, hereinafter referred to as defendant, was tried jointly with John Matheny under section 82, Act No. 328, Pub.Acts 1931, Comp.Laws 1940 Supp. § 17115-82 (Stat.Ann. § 28.277).

Plaintiff's claim is as follows: The two defendants came into the Ford tavern in the city of Lansing on the evening of March 5, 1943; at that time there were about 20 people in the place. As they entered, Theodore Drongowski, the bartender (called Ted), observed them to be in a ‘more or less' intoxicated condition, considered that defendants should not be served any beer, and so advised them, after they were seated. Defendants arose as though they were about to leave, but defendant Matheny went to the bar, to which Ted had returned, and gave Ted some argument for a couple of minutes; Ted then went on with his work and later noticed defendants seated at another table. Ted then came from the bar and told defendants to leave the place, that he didn't want them to drink beer. After some discussion Matheny hastily drank his glass of beer. Defendant Kynerd began drinking his glass but Ted reached for it to take the glass from him, whereupon defendant threw the beer into Ted's face. Defendant then struck the glass against the table, breaking the glass, and then struck Ted in the face with the broken glass with its sharp and jagged edges. Defendant Matheny was holding Ted when Ted was struck and while he was in a crouching position trying to protect himself from blows. Due to defendant Kynerd's blow with the broken glass, 23 stitches were required to close the wound about Ted's eye, and Ted remained in the hospital four days. The prosecution further claims that Ted did not strike nor offer to strike either of the defendants on the occasion in question.

Defendant's claim is as follows: He and defendant Matheny had visited one other beer tavern on the evening in question. They went into the Ford tavern and after they had sat down at an unoccupied table and had each ordered a glass of beer, Ted came to their table and informed them they could not have any beer. Thereupon defendants walked to another table where two of their friends were seated and on which there were four glasses of beer apparently ordered by their two friends. Defendant Matheny, before drinking, stepped up to the bar and protested Ted's order. After some argument in which defendant did not take part, defendant Matheny returned to the table, at which the two defendants seated themselves, whereupon Ted came to their table and told them they could not have any beer. Some argument occurred and as defendant attempted to raise the beer glass to his mouth, Ted reached for the glass; defendant stood up at the edge of the table, threw the glass back and thrust it at Ted's face; beer splashed in Ted's face and Ted was struck by the glass and sustained serious cuts.

Defendant contended on the trial that the glass was broken upon the edge of the table, that his intention was merely to throw the beer in Ted's face, and that he did not intend to break the glass, nor to use it as a weapon, nor to cause the injuries that Ted sustained.

Defendant does not make any claim that Ted struck or offered to strike either defendant.

Six questions are stated by defendant as his claims of error.

The first claim of error is based on the trial court's refusal of defendant's motion for a trial separate from defendant Matheny. This claim is without merit. Granting separate trials for jointly indicted defendants is discretionary. 3 Comp.Laws 1929, § 17298 (Stat.Ann. § 28.1028). We consider the discretion was not abused in the case at bar.

On the day on which the case had been set for a jury trial, prospective jurors were occupying jury chairs, and the prosecutor and both defendants by their separate attorneys had announced themselves ready for trial, whereupon defendant Kynerd moved for separate trial on the sole ground that the offense alleged could not very well have been committed by both defendants acting together. Defendant did not specify just how it was impossible for both defendants to be involved in the commission of the offense.

The testimony showed that defendant Matheny held Ted while defendant Kynerd threw the beer in Ted's face and inflicted the injuries complained of.

Plaintiff's theory was that Matheny aided and abetted Kynerd in the assault. Defendant filed no affidavit with the court stating facts on which the court might determine whether the defenses relied upon were inconsistent with each other, and that a joint trial might be prejudicial to Kynerd.

No prejudice to defendant's case is shown to have resulted by reason of the refusal of a separate trial. See People v. Ellsworth, 90 Mich. 442, 51 N.W. 531;People v. Mullane, 256 Mich. 54, 56, 239 N.W. 282;People v. Garska, 303 Mich. 313, 318, 319, 6 N.W.2d 527;People v. Burczyk, 308 Mich. 194, 197, 13 N.W.2d 258.

The second claim of error is based on the trial judge's order that the prosecutor indorse on the information the names of two witnesses, Joe Fineout and James Burlison. After the jury had been sworn and the testimony of Ted taken, the prosecuting attorney, Mr. Anderson, moved that the names of these two men, whom Ted as a witness had identified, be indorsed on the information. Mr. Anderson, being sworn on demand of defendant Matheny, testified: ‘I had known that somebody by the name of Fineout may have been a witness, but I was further informed he was in California. I was so informed some time ago. I made further inquiry this morning as to this individual, Burlison. I never heard his name before. I have examined the transcript of the testimony which is in my possession, a copy of it, and his name does not appear in the transcript to my knowledge. * * * I never heard of the individual (Burlison).’

Defendant, through Mr. Bird, his attorney, waived the production of Burlison as a witness, and waived the question of the indorsement of Burlison's name on the information. Mr. Bird also announced that he accepted the prosecutor's statement that Joe Fineout was in California. Neither of these witnesses was called to the witness stand. No prejudice to the defense could well have resulted from the indorsement of the names on the information, under all the circumstances.

The third claim of error is that the trial court denied defendant's motion that the prosecutor be ordered to indorse, as res gestae witnesses, the names of two men who were seated at the table where the injuries were inflicted on Ted. As applied to the circumstances of this case, the motion was dilatory. After the defendant had rested his case, he moved for the first time that the court direct the prosecutor to indorse the names of these two witnesses on the information. Defendant claims that the act for which defendant was tried occurred in the immediate presence of these two men and that they therefore were res gestae witnesses. Defendant testified: ‘Nobody could have saw it except the two boys sitting at the table. I feel that the only ones in that room who could have seen it was the two men at the table, actually what happened.’

The claim of the prosecution is that when defendant was on the stand the prosecution learned for the first time the names of these two witnesses, Jake Taylor, and Bill Horton. Ted, a witness for the prosecution, had testified that he did not know who these two men were but considered that he could give the first name of one of them and that it was Jay, apparently referring to Jake Taylor. Neither the prosecuting attorney nor the police officers had their names. See 3 Comp.Laws 1929 § 17254, Stat.Ann. § 28.980.

During the discussion of the motion, the following occurred:

‘Mr. Anderson: I will challenge Mr. Bird to answer the question whether or not those witnesses he has referred to were not in court yesterday throughout the entire day. * * *

‘Mr. Bird: I object to the question directed to counsel for the defense as incompetent and immaterial, even if I was under oath, that is immaterial, so far as this motion is concerned. That is no excuse for the prosecutor. In fact if the prosecution knew they were in court all day yesterday, which I am not admitting they were, that is no excuse why he shouldn't have called them.’

If Mr. Bird knew these witnesses were available, there seems no good reason why he should withhold that information from the prosecutor, who would thus have been aided in procuring their attendance.

After the prosecution had rested, defendant's attorney, Mr. Bird, in beginning his defense, said, ‘We will give you a defense which in our opinion will show to you he did not have the deliberate criminal intent to make out of this glass a weapon and stab Ted, the bartender, in the face. We will demonstrate that, not only from his testimony, but that of Matheny, and will demonstrate it from the testimony of other witnesses that so far have not been called by the prosecution.’ (Italics supplied.)

Defendant knew the names of the two res gestae witnesses and withheld that knowledge from the prosecution until their names were stated by defendant in his testimony. After ...