People v. Lowenstein, 68.

• Citation: 309 Mich. 94,14 N.W.2d 794
• Decision Date: 06 June 1944
• Docket Number: No. 68.,68.
• Parties: PEOPLE v. LOWENSTEIN.
• Court: Michigan Supreme Court

309 Mich. 94

14 N.W.2d 794

PEOPLE

v.LOWENSTEIN.

No. 68.

Supreme Court of Michigan.

June 6, 1944.

Max Lowenstein was convicted of sodomy and of having debauched the morals of a boy under the age of 15 years, and he appeals.

Affirmed.

Appeal from Recorder's Court of Detroit; Christopher E. stein, judge.

Before the Entire Bench.

Frank G. Schemanske, of Detroit, for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, William E. Dowling, Pros. Atty., and Frank J. Wendt, and Henrietta E. Rosenthal, Asst. Pros. Attys., all of Detroit, for the People.

BOYLES, Justice.

Defendant appeals from a conviction and sentence on an information charging him in the first count with the crime of sodomy, and in a second count with having debauched the morals of a boy under the age of 15 years. Two errors are relied on for reversal: (1) That the court erred in denying defendant's motion for a new trial based on a claimed repudiation by George Kusulin, the 14-year-old boy, of his testimony as the principal witness for the people; and (2) that the verdict of the jury finding the defendant guilty on both counts was faulty, erroneous and void.

A detailed recital of the repulsive testimony is not necessary to decision. George Kusulin, the 14-year-old boy who was the subject of the crime, is an epileptic, attending special school since the age of seven. He was working for the defendant at defendant's gasoline filling station, doing odd jobs, changing tires, etc. His testimony before the jury, while inconsistent in many details, was sufficient to convince a jury of defendant's guilt beyond a reasonable doubt. It was corroborated to some extent by other witnesses-the clerk and another employee of the hotel where defendant had a room and where the offense is claimed to have been committed. The defendant testified in his own behalf and denied committing the offense. He admitted having been convicted and sentenced in New York for a felony, and having been sentenced to a term of 3 1/2 to 4 years in Michigan for larceny. At the time of the present trial he was serving a 90-day sentence in the county jail for another offense. Several witnesses for the defendant testified regarding certain inconsistencies in the people's testimony. Credibility of witnesses was for the jury. The testimony is important only as it bears on the denial of defendant's motion for a new trial.

After conviction and before sentence the defendant moved for a new trial. The ground then urged which is now before us for consideration was that the 14-year-old boy had testified falsely and that he had subsequently repudiated his testimony. Neither the court's opinion nor order denying the motion for new trial is in the printed record, although the motion obviously was denied as the court later imposed sentence and mittimus was issued. However, we take judicial notice of the files of this court on defendant's application for leave to appeal and his showing in support thereof, on which showing leave to appeal was granted. The proceedings on the motion, omitted from the printed record, are in the files of this court.

Affidavits in support of the motion for new trial were filed, showing that George Kusulin, the 14-year-old boy, had signed an unsworn written statement before witnesses that he had testified falsely. His counsel stated he would ask the court to direct police officers to produce this boy before the court. In defendant's statement of facts filed in this court with his application for leave to appeal, signed by defendant's present counsel and certified to this court by the trial judge, it appears that the 14-year-old boy was called and did testify before the court on the hearing on defendant's motion for new trial. Such procedure was approved by this court in People v. Keller, 227 Mich. 520, 198 N.W. 939, 940, where a motion for new trial was granted in this court after the complaining witness had recanted her former testimony. There the court said:

‘We think it unfortunate that the court did not require Leah to be produced as a unreliability of affidavits as evidence has witness on the hearing of this motion. The long been recognized. Had Leah been brought before the court and examined, the judge would have been enabled to form an opinion of the weight which should be given to her conflicting sworn statements which we would be loath to disturb.’

From defendant's statement of facts, certified by the trial judge, we quote what occurred in court on defendant's motion for a new trial:

‘At the hearing on the motion for new trial, George Kusulin testified that after defendant's convictions, his brother, Dave, a taxi driver, picked up George Kusulin on the street at 10:00 P.M. on Saturday, February 20th, threatened him for having framed his brother, saying he could kill him and then promised him that he would pay the family rent and that nobody in the family would have to work if George would go to defendant's attorney and tell him that the charge against defendant and a similar charge against one Rubin, were false and had been framed by the Canfield police. Dave did not permit the boy to go home but kept him with him until the following Tuesday morning, during which time Dave wrote up an alleged confession, showing that the story was a frame-up and had the boy sign it in the presence of some taxi drivers and a passenger. During the same time, the boy was taken to the office of defendant's attorney to tell his story, but made no written statement. When he returned home on Tuesday, February 23rd, his mother had already called the juvenile officers, reporting his absence. Since he was on probation, the officers took him back to juvenile court where he told them what had happened and repeated that his original story was...