People v. Lee

• Decision Date: 06 June 1932
• Docket Number: No. 164.,164.
• Citation: 242 N.W. 787,258 Mich. 618
• Parties: PEOPLE v. LUM LEE.
• Court: Michigan Supreme Court

258 Mich. 618

242 N.W. 787

PEOPLE

v.LUM LEE.

No. 164.

Supreme Court of Michigan.

June 6, 1932.

Appeal from Circuit Court, Genesee County; James S. Parker, Judge.

Lum Lee was convicted of murder in the second degree, and he appeals.

Reversed, and a new trial granted.

Argued before the Entire Bench.

Andrew J. Transue, of Flint, for appellant.

Paul W. Voorhies, Atty. Gen., and Ralph.M. Freeman, Pros.Atty., of Flint, for the People.

McDONALD, J.

The defendant has appealed from a judgment of conviction of murder in the second degree.

The deceased, James Keyes, and the defendant, Lum Lee, were partners in a restaurant business in the city of Flint, Mich.It is the claim of the people that on the day of the murder the men engaged in a quarrel in the restaurant during which the defendant, without reasonable provocation, pulled a revolver from his pocket and shot and killed Keyes.The defendant admitted the killing, but says it was done in self-defense.It is his claim that Keyes had previously assaulted him with a cleaver and threatened to kill him; that he was afraid of Keyes; that, when Keyes was under the influence of liquor, he was ugly and violent; that on the day of the killing Keyes came into the restaurant and went into the kitchen where defendant was working; that he had been drinking; that he began to swear at defendant and call him obscene names; that he threatened to kill defendant; that he got a knife from the kitchen and struck at defendant saying, ‘I kill you’; that, believing his life was in danger and seeing no way of escape, he shot and killed deceased while his arm was raised for another blow with the knife.

These claims shown in greater detail by the testimony formed the issue that was submitted to the jury and on which a verdict of second degree murder was rendered.

The record presents the following questions for consideration:

(1) Was it error for the court to refuse counsel for the defendant in his opening statement to the jury the right to state his theory of the law which he believed applicable to the defense?

While this court has always conceded to a trial court a liberal discretion in the control and direction of statements and arguments of counsel to the jury, it has as strongly upheld the right of counsel to state their theory of the law as applicable to the facts which they expect to prove.In one of the earlier cases, Fosdick v. Van Arsdale, 74 Mich. 302, 41 N. W. 931, 932, it is said: ‘The counsel have no right to read law to the jury, or to usurp the province of the court in any way in this respect, but they have the undoubted right to state so much of the law, as they claim it to be, as may enable them to lay before the jury an intelligent idea of the force, effect, and bearing of the testimony upon their case, either before or after said testimony is in the case.’

A discussion of this case and others applicable to the question is found in People v. Smith, 177 Mich. 358, 143 N. W. 12, wherein it was held, quoting from the syllabus: ‘Upon the trial of a prosecution for selling liquor to an habitual drunkard, the court committed reversible error in refusing to counsel for respondent the privilege of stating his theory of the law to the jury in opening his defense.’

A more recent recognition of this right will be found in Terrill v. Michigan United Traction Co., 214 Mich. 478, 183 N. W. 46, andJones v. Detroit Taxicab & Transfer Co., 218 Mich. 673, 188 N. W. 394.

In the present case it was error for the trial court to deny to the defendant's counsel the right to state his theory of the law to the jury.

(2) Was it error for the prosecuting attorney in his cross-examination of the defendant to ask him if he had killed two men in Oregon, and, after a negative answer, to comment on it in his closing argument to the jury?

The cross-examination was as follows: ‘Q.Didn't you kill two men in Oregon?You understand that?You don't need an interpreter.Isn't that why you went to Alaska?’‘A.No.’

We have no doubt of the good faith of the prosecuting attorney in asking the question, and therefore do not hold it was error.But, having received a negative answer and being unable to disprove it, good faith required that the matter rest there.Instead of doing so he again referred to it in his closing argument in the following language:

‘There has been some little argument on the part of counsel and...