People v. Levey

• Decision Date: 29 May 1919
• Docket Number: No. 114.,114.
• Citation: 172 N.W. 427,206 Mich. 129
• Parties: PEOPLE v. LEVEY.
• Court: Michigan Supreme Court

206 Mich. 129

172 N.W. 427

PEOPLE

v.LEVEY.

No. 114.

Supreme Court of Michigan.

May 29, 1919.

Error to Recorder's Court of Detroit; Charles T. Wilkins, Judge.

Martin Levey, alias Marty Steele, was convicted of breaking and entering a store with intent to commit larceny, and he brings error. Reversed, and new trial granted.

Argued before BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ. Chawke & Sloan, of Detroit, for appellant.

Charles H. Jasnowski, Pros. Atty., and Van H. Ring, Asst. Pros. Atty., both of Detroit, and Alex J. Groesbeck, Atty. Gen., for the People.

FELLOWS, J.

The information in this case charges defendant and one Nadel with breaking and entering ‘the store, not adjoining to or occupied with a dwelling house, of Grimshaw & Stevens, a corporation,’ in the nighttime, with intent to commit the crime of larceny, and the larceny of the goods and chattels of the corporation to the value of $1,701. Upon a separate trial defendant was convicted of the major offense, and sentence was imposed. He here reviews such conviction upon this writ of error.

After the jury had been out something over two hours they were brought into court at their request, and the court was informed by the foreman that one of the jurors had been approached. The record does not disclose that defendant's counsel was then present, but it does disclose that the judge conferred with two of the assistant prosecutors, and then inquired of the foreman if the statement made by the juror in the jury room would affect their verdict, and if they could render a fair and impartial verdict upon the law and the evidence regardless of the incident. The foreman expressed the view that they could. No inquiry was made of any other member of the panel, nor was any further investigation had. The jury retired, and in a few minutes returned a verdict of guilty. This incident is made the basis of an exception, and was one of the reasons assigned in the motion for a new trial.

Both the people and the defendant were entitled to a trial by a fair, impartial, and unprejudiced jury. It not infrequently happens that incidents occur after the jury is sworn and the trial has progressed which create, or which may tend to create, such a condition of prejudice as prevents a fair, impartial, and unbiased disposition of the case by the jury. This court has had occasion to consider varying conditions and incidents occurring during the progress of the trial, and which were urged as grounds for declaring a mistrial or as a basis for the granting of a new trial. Among the cases see: Churchill v. Alpena Circuit Judge, 56 Mich. 536, 23 N. W. 211;People v. Montague, 71 Mich. 447, 39 N. W. 585;People v. Evans, 72 Mich. 367, 40 N. W. 473;People v. Hull, 86 Mich. 449, 49 N. W. 288;In re Ascher, 130 Mich. 540, 90 N. W. 418,57 L. R. A. 806;Detroit, etc., R. Co. v. Campbell, 140 Mich. 384, 103 N. W. 856;People v. Parker, 145 Mich. 488, 108 N. W. 999;Harrington v. Probate Judge, 153 Mich. 660, 117 N. W. 62;Cooper v. Carr, 161 Mich. 405, 126 N. W. 468;People v. Sharp, 163 Mich. 79, 127 N. W. 758;Solomon v. Loud, 173 Mich. 233, 140 N. W. 651,48 L. R. A. (N. S.) 540;In re Quinn's Estate, 180 Mich. 502, 147 N. W. 566.

In the case of People v. Montague, supra, it was intimated that proper practice required the presentation of such a question by a motion for a new trial, and that the court should not interrupt the trial to examine into the charges. But this was not necessary to decision and the later cases have recognized the propriety of action by the trial judge upon receiving knowledge of the incident. In re Ascher, supra; Cooper v. Carr, supra; People v. Sharp, supra. In the last-cited case it was said:

‘We deem it wholly unimportant whether the juror was disqualified when impaneled and sworn, or whether he became corrupted and disqualified during the progress of the trial. In either case the duty of the court to act when such disqualification is discovered is imperative. Much must be left to the sound sense and good judgment of the trial judge in such a case.’

In the instant case there was no action taken by the trial judge other than his inquiry of...