People v. Locke, 116.

• Decision Date: 06 April 1936
• Docket Number: No. 116.,116.
• Citation: 266 N.W. 370,275 Mich. 333
• Parties: PEOPLE v. LOCKE.
• Court: Michigan Supreme Court

275 Mich. 333

266 N.W. 370

PEOPLE

v.LOCKE.

No. 116.

Supreme Court of Michigan.

April 6, 1936.

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

William G. Locke was convicted of assault and robbery while armed with a dangerous weapon and with intent to kill or maim if resisted, and he appeals.

Reversed, and new trial granted.

Argued before the Entire Bench, except TOY, J.

Earl W. Munshaw, Julius J. Herscher, and Seth R. Bidwell, all of Grand Rapids, for appellant.

Bartel J. Jonkman, Pros. Atty., and Menso R. Bolt, Asst. Pros. Atty., both of Grand Rapids, for the People.

EDWARD M. SHARPE, Justice.

Respondent was convicted on the charge of having on the 12th day of August, 1931, assaulted and robbed one Almond Foster in his grocery store of the sum of $7, and that at the time of committing said assault and robbery he was armed with a dangerous weapon and intended to kill or maim if resisted. The defense was an alibi.

It is the claim of the people that while respondent did not actually commit the robbery himself, yet he was a participant, in that he planned the robbery, furnished the guns for the holdup, and waited outside in an automobile while the robbery was committed. When the cause came on for trial, the respondent did not take the stand and testify, and the people had to rely largely upon the testimony of three convicts, two of whom were confessed perjurers.

The respondent claims error in the admission of the testimony of Frank O'Malley, a detective connected with the Grand Rapids police force, relating to a conversation he had with the respondent after respondent's arrest.

‘Q. Will you tell the jury the conversation you had with Mr. Locke. A. I told Mr. Locke he was charged with a holdup that happened on the 12th day of August, 1931. I asked him what he knew about it and he said he didn't know anything about it. Te turned to me and said, ‘O'Malley, you don't think I am a holdup man, do you?’ And I said, ‘I wasn't there, I don't know.’ I said, ‘I don't know, you went out with a man by the name of—did I say Bill, you went out with a man by the name of Jim Westrate and Dever and picked up another man by the name of Lapham out in the country sometime ago with the intention of hijacking a man,’ and I said, ‘Is that true?’ And he said ‘yes, I did, but,’ he said, ‘we didn't go to the man's place.’'

Section 17320, 3 Comp.Laws 1929, provides in part that: ‘In any criminal case where the defendant's motive, intent, and absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.’

The interpretation of this statute has been the subject of much controversy in the courts of this state. In People v. Dean, 253 Mich. 434, 235 N.W. 211, 212, the defendant was charged with the commission of an act of gross indecency with a 17 year old boy. During the trial of the cause the prosecution was permitted to prove the commission of similar acts by the defendant with several other boys. We said:

‘The only apparent reasoning on which this testimony can be said to be relevant is that it tends to establish a disposition on the part of the defendant to commit such an act. If admissible for that purpose, other larcenies might be proven in a case where a man was charged with that offense, and other assaults, bigamies, rapes, etc., in like cases.

‘That the defendant committed similar offenses with other boys has no direct tendency to show that he committed that with which he is charged, which had no connection with them. By the admission of such testimony, he is, in effect, called upon to defend against charges, without notice that he would be required to meet them. Where the charge involves conduct with the same person, as in the Swift Case [People v. Swift, 172 Mich. 473, 138 N.W. 662], he may, on the preliminary examination, elicit the fact that such...