People v. Lay, 85

• Decision Date: 10 March 1953
• Docket Number: No. 85,85
• Parties: PEOPLE v. LAY.
• Court: Michigan Supreme Court

Page 453

57 N.W.2d 453

336 Mich. 77

PEOPLE v. LAY.

No. 85.

Supreme Court of Michigan.

March 10, 1953.

Norman P. Silverstein, Detroit, for appellant.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Gerald K. O'Brien, Pros. Atty., Wayne County, Samuel J. Torina, Samuel Brezner, Asst. Pros. Attys., Detroit, for appellee.

Before the Entire Bench.

REID, Justice.

Defendant, on leave granted, appeals from his conviction of a misdemeanor and sentence therefor to the Detroit house of correction for 90 days. Part of the statement of facts recited in defendant's brief is as follows:

'On February 17, 1952, officers from the city of Detroit police department came to 539 E. Palmer avenue in the city of Detroit, where they were met by the appellant, Calloway Lay, who told them that he had put cyanide in a quart bottle of milk and put it outside his door in order to get the person who had been stealing his milk; that the milk had been stolen that morning, and he, the appellant, yelled down the hallway as the person was escaping with the milk not to drink the milk, because he, the appellant, had poisoned it. The next day, on February 18, 1952, the appellant, having been kept in jail all night, was questioned by a detective concerning the alleged incident and told said detective that it was not true that he, the appellant, had put poison in the bottle of milk.'

The trial of defendant began on February 26, 1952, in recorders court for the city of Detroit by a judge thereof acting as a magistrate without a jury on complaint and warrant charging the reporting of a fictitious crime to peace officers, under C.L.1948, § 750.411a, Stat.Ann. 1951 Cum.Supp. § 28.643(1), which reads:

'Reporting of fictitious crimes to peace officers--Any person who shall wilfully make to any member of the Michigan state police, any sheriff or deputy sheriff, or any police officer of any city or village, or any other peace officer of this state, a fictitious report of the commission of any crime knowing the same to be false, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 90 days or by a fine of not more than $100.00.'

No copy of complaint or warrant is set forth in the record. Evidently defendant was charged with having falsely reported to the officer a violation of the following statute, C.L.1948, § 750.436, Stat.Ann. § 28.691:

'Poisoning food, wells, etc.--Any person who shall mingle any poison with any food, drink or medicines, with intent to kill or injure any other person, or shall wilfully poison any spring, well or reservoir of water, with such intent, shall be guilty of a felony, punishable by imprisonment in the state prison for life, or any term of years.'

At the trial on February 26, police officer Ralph Hatt testified that on February 17, 1952 he went to 539 East Palmer in Detroit and there met the defendant who told the officer that he had put cyanide in a quart bottle of milk and put it outside his door in order to get the man who had been stealing his milk.

Detective Casper Peek testified that he had a conversation with the defendant at the thirteenth precinct station, where the defendant was held, on February 18, 1952, and that defendant then denied he had put poison in a milk bottle. Defense counsel objected to the admission of the conversation on the ground that it was in the nature of a confession, and, as such, could not be used to establish the corpus delicti. The court struck the testimony. The people rested. The matter was adjourned until March 4, 1952.

The assistant prosecutor on the adjourned date moved for permission to reopen for the purpose of additional testimony. There were no objections made by the defense. Testimony was then given by officers Hardy and Langtry here recited in part and in condensed form.

Detective Wash Hardy testified as to the investigation made by the police at 539 East Palmer on February 17, 1952, that they notified the other residents of the apartment not to drink any milk if they had picked up a bottle; that they were unable to find that any milk had been stolen; that about four scout cars, eight patrolmen, five detectives, an inspector and a sergeant were involved in the investigation.

Inspector Albert Langtry of the police scientific laboratory testified that on February 17, 1952 he talked to the defendant at the thirteenth precinct, and examined his hands and clothing for traces of cyanide but found none; that defendant told him he took some cyanide from the Ford Motor Company, wrapped it in a paper towel, carried it home and threw the paper towel in a wastebasket; that the witness then went to the defendant's home, examined the premises and wastebasket and found no evidence of cyanide or a paper towel, and that no milk had been turned over to him.

Inspector Langtry was recalled and testified that on February 18, 1952, at the thirteenth precinct station, he had a conversation with the defendant who told him that he had been drunk, that he did not put any cyanide in the milk, and that he did not have any milk stolen. At this point defense counsel requested that the said statement be stricken. The court ruled:

'I will let it stand. It is a statement of fact, he didn't put any cyanide in the milk. Let it stand.'

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