People v. O'Leary, 912

• Court: Court of Appeal of Michigan
• Writing for the Court: HOFFIUS
• Citation: People v. O'Leary, 148 N.W.2d 516, 6 Mich.App. 115 (Mich. App. 1967)
• Decision Date: 28 February 1967
• Docket Number: No. 912,No. 3,912,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer Alfred O'LEARY, Defendant-Appellant. Cal

Page 516

148 N.W.2d 516

6 Mich.App. 115

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer Alfred O'LEARY, Defendant-Appellant.

Cal. No. 912.

Court of Appeals of Michigan, Division No. 3.

Feb. 28, 1967.

Leave to Appeal Denied May 12, 1967.

William J. Ginster, Saginaw, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert B. Currie, Pros. Atty. Saginaw County, Saginaw, for appellee.

Before HOLBROOK, P.J., and BURNS and HOFFIUS ^*, JJ.

HOFFIUS, Judge.

Defendant was convicted of negligent homicide, C.L.1948, § 750.324 (Stat.Ann.1954 Rev. § 28.556), arising out of an accident on June 15, 1963 on highway M--81 at the western outskirts of Reese, in Saginaw county. The highway ran in an east-west direction and was 22 wide. The accident occurred on a sunny, bright, clear, dry day. Defendant was driving a pick-up truck in an easterly direction on said highway. Theresa Palmreuter was the driver of a 1957 Mercury sedan which was proceeding on M--81 in a westerly direction. Traveling with her and sitting in the front seat of her automobile were her two minor children, Mary D. Palmreuter and Nancy M. Palmreuter, both of whom died as a result of the injuries suffered in this accident.

Defendant O'Leary was charged with involuntary manslaughter, C.L.1948, § 750.321 (Stat.Ann.1954 Rev. § 28.553). The manslaughter charge was dismissed at the close of the proofs and the case submitted to the jury on the negligent homicide charge only. There was testimony that the defendant had been driving in an erratic manner, going over the center line several times prior to the point of impact, and that just before the impact, defendant's truck crossed the center line and went into the north lane or westbound lane of traffic and struck Mrs. Palmreuter's vehicle. The prosecution offered the testimony of Mrs. Palmreuter, as well as two disinterested witnesses who were following in an automobile approximately 500 behind defendant's pick-up truck. All three of these witnesses confirmed that defendant crossed the center line immediately prior to impact, striking Mrs. Palmreuter's automobile in her own westbound lane of traffic.

Defendant denied this and claimed that Mrs. Palmreuter crossed the center line into his south or eastbound lane of traffic just prior to the collision. In support of this claim he relied upon his own testimony, as well as the location of the debris and position of the vehicles after the accident.

After the impact, the Mercury, driven by Mrs. Palmreuter, was facing west in the eastbound lane of traffic south of the center line. Defendant's truck was facing in a southwesterly direction and was in contact with Mrs. Palmreuter's right front fender. From the exhibits, it is apparent that there was extensive damage to the right and entire front end of defendant's vehicle and that the greatest damage to Mrs. Palmreuter's vehicle was the right front end.

There were parts and debris scattered over the highway in the general area of the collision. Traces of oil and radiator water were in the north lane, but most of the fluid was on the south side of the highway. Numberous parts were found under the front of Mrs. Palmreuter's vehicle and near the center line between the two cars.

Defendant claims that the examining magistrate erred in binding the case over for trila on manslaughter. He also claims that the trial court erred by denying defendant's motion to quash the manslaughter charge, by refusing to grant a continuance, by ruling against defendant on certain evidentiary matters, and by holding that the verdict was not contrary to the great weight of the evidence.

Relative to defendant's claim that the examining magistrate erred in binding the defendant over for trial, the complaint and warrant charged that defendant was driving under the influence of intoxicating liquor and negligently and wantonly crossed the center line of the highway, striking Mrs. Palmreuter's vehicle.

"Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty." People v. Ryczek (1923), 224 Mich. 106, 110, 194 N.W. 609, 611.

See, also, People v. Wardell (1939), 291 Mich. 276, 289 N.W. 328.

Three eyewitnesses to the accident testified at the preliminary examination that, on different occasions, defendant drove his truck in the wrong lane of traffic and that at the time of the collision, he was completely on the wrong side of the highway. The officers testified they smelled the odor of alcohol on defendant's breath.

Defendant argued that the physical facts of the position of the car and location of the debris indicated conclusively that the accident did not occur as the prosecution claimed. The examining magistrate, however, decided that the case should be bound over for trial on the charge of involuntary manslaughter.

A finding of probable cause does not require that the guilt of the defendant be established beyond a reasonable doubt. Even though the trial court or this Court may not agree with the magistrate, we cannot substitute our judgment for the magistrate's determination of probable cause unless there has been a clear abuse of discretion. People v. Marklein (1960) 358 Mich. 471, 101 N.W.2d 348; People v. Carr (1963), 370 Mich. 251, 121 N.W.2d 449; People v. Davis (1955), 343 Mich. 348, 72 N.W.2d 269; People v. Dellabonda (1933), 265 Mich. 486, 251 N.W. 594. This Court is of the opinion that there was sufficient evidence to uphold the magistrate's action in this case.

Counsel for defendant next urges that the trial court erred in its denial of the motion to dismiss the manslaughter charge at the end of the prosecution's case. Upon renewal of the motion prior to the submission of the case to the jury, the court dismissed the manslaughter charge and permitted the case to go to the jury only on the charge of negligent homicide. Under the circumstances, the question became moot, since the jury never had the opportunity to consider the manslaughter charge and no error was committed.

Defendant next claims error when the trial court denied a motion for continuance because of the pregnant condition of Theresa Palmreuter, mother of the two deceased children. The basis for a continuance by the court is set forth in the following statute:

'No adjournments, continuances or delays of criminal causes shall be granted by any court except for good cause shown in the manner provided by law for adjournments, continuances and delays in the trial of civil causes in courts of record'. C.L.1948, § 768.2 (Stat.Ann.1954 Rev. § 28.1025).

A continuance is a matter of discretion with the trial court. In People v. Knox (1961), 364 Mich. 620, 111 N.W.2d 828, the trial court denied defendant's request for a continuance to obtain an expert witness. The Supreme Court stated at page 644, 111 N.W.2d at page 840:

'It has been repeatedly recognized by this Court that a trial judge has discretion in granting or refusing a motion of the character here involved, and that this Court will not interfere unless there has been a palpable abuse of such discretion. In view of the situation with which the trial judge was confronted, it may not be said that his action in denying the request for further time for the appearance of the desired witness was unreasonable. The judicial discretion was not abused.'

In People v. Raider (1931), 256 Mich. 131, 239 N.W. 387, a continuance because of alleged inflammatory articles in the newspaper was denied and the Court held that the defendant had not carried the burden of proving an abuse of discretion. The Court said at page 134, 239 N.W. at page 388:

'Continuance was within the sound discretion of the court. The burden is on the party claiming abuse of discretion to show it. Prejudice to defendant must be apparent or proved to have been at least probable.'

In the instant case, the pregnancy of Mrs. Palmreuter cannot be said to have been so prejudicial to the interests of the defendant as to compel this Court to find that the trial court abused its discretion in the denial of a motion for continuance.

Defendant claims also that the trial judge erred in terminating defense counsel's interrogation of a witness who purportedly could reveal prior inconsistent statements made by Charles Knoop, an eyewitness to the accident, relative to the distance between his vehicle and defendant's pickup truck. The questions asked were as follows:

'Q. And did people come into your house to use the telephone?

'A. Yes, there was people in the house. There was quite a few people in the house. I don't know who they all were.

'Q. And did you talk to a tall thin man about the accident?

'A. Yes.

'Q. What did he say ma'am?

'THE COURT: No, this is hearsay again. I don't want this on the record.'

At no time did defendant's counsel pursue this questioning with specific identification of witness Knoop as the 'tall thin man' nor did he state to the court that such testimony was for the purpose of impeaching witness Knoop's prior testimony. No further offer of proof was ever made. Defendant's counsel did not make known to the court his position in regard to this testimony as required under GCR 1963, 507.5, which reads:

'Exceptions Unnecessary. Formal exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party, at the time of the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of the objection does not thereafter prejudice him.'

In addition thereto, defendant's counsel did not make an offer of...