People v. Lummis, No. 167.

• Court: Supreme Court of Michigan
• Writing for the Court: SHARPE
• Citation: 260 Mich. 170,244 N.W. 438
• Parties: PEOPLE v. LUMMIS.
• Decision Date: 03 October 1932
• Docket Number: No. 167.

260 Mich. 170
244 N.W. 438

PEOPLE
v.
LUMMIS.

No. 167.

Supreme Court of Michigan.

Oct. 3, 1932.

Appeal from Circuit Court, Kalamazoo County; George V. Weimer, Judge.

Barclay Pat Lummis was convicted of statutory rape, and he appeals.

Affirmed.

Argued before the Entire Bench.

NORTH, POTTER, and FEAD, JJ., dissenting.

[244 N.W. 438]

W. J. Barnard, of Paw Paw, for appellant.

Paul W. Voorhies, Atty. Gen., and Edward A. Bilitzke, Asst. Atty. Gen., for the People.

SHARPE, J.

Defendant here seeks review of his conviction on the charge of having committed the crime of rape upon the person of Lucile Button, a female child of the age of fourteen years. The young girl's mother was the wife of the defendant. The offense was alleged to have been committed on or about the 1st day of February, 1931.

1. It is urged that no ‘specific act of intercourse’ was ‘pointed out or segregated’ or which conviction might be had. Lucile testified:

‘About the first of February last I was living on Harrison street and I had intercourse with my stepfather.

‘Q. How many times?

‘Mr. Barnard: I object to that until they first show what act they rely upon, if the Court please. * * *

‘Mr. Larmonth: I am getting at that-about the first of February. That is when we allege the offense was committed.

‘Mr. Barnard: Do I understand, Mr. Attorney General, that you are relying on an act that took place in this case, that is what you predicate your action on, as occurring on or about the 1st of February, 1931?

‘Mr. Larmonth: Yes.

‘Mr. Barnard: All right.

‘Along about that time I had intercourse with my stepfather, yes; and had intercourse with him during the month of January, 1931.’

She also testified that the offense was committed in a room in the defendant's house and during the absence of her mother. The court in his instructions to the jury said:

‘The state does not attempt to fix the exact, precise date, and the state is not required to fix the exact calendar date; but the state is required to rely upon some one transaction for a conviction. * * *

‘The theory and claim of the state in this case is, that this offense was committed repeatedly in the same place, the same room, the same house, at about the same hour of the day, and without giving or attempting to give you any particular-especially particular details as to the particular transaction or occasion on which the state relies for a conviction, it is left to you to say whether or not on or about the 1st of February, in this room, in that home where these parties lived, this respondent and his step-daughter, the girl Lucile had sexual relations, and whether or not at that time she was under sixteen.’

We find no error in the admission of this proof or in the charge of the court in this respect. Comp. Laws 1929, § 17265; People v. Schultz, 238 Mich. 15, 213 N. W. 135.

2. When the prosecution had rested, defendant's attorney asked that Alice Walsh and Arthur Webster, whose names were indorsed on the information as witnesses, be produced. Mrs. Walsh was then called. A controversy arose as to whether defendant's counsel had the right to cross-examine her. The court ruled that he had. The question then arose as to whether he would be bound by her answers, and the court, without expressly ruling thereon, intimated that he would. Counsel then declined to ask the witness any questions. No claim is made that these were res gestae witnesses. The prosecution stated that they might be used in rebuttal.

The statute requires the prosecuting attorney to indorse on the information ‘the names of the witnesses known to him at the time of filing the same.’ Comp. Laws 1929, § 17254. No duty is imposed upon him to indorse thereon the names of witnesses which he may find it necessary to call in rebuttal. On application he may have such names indorsed when he seeks to call them. People v. Tamosaitis, 244 Mich. 258, 221 N. W. 307. If, however, he does indorse the name of a person not a res gestae witness, he must have him in court, but need not call him as a witness. People v. Whittemore, 230 Mich. 435, 203 N. W. 87. ‘The fact that the name of a witness is endorsed on the information, does not of itself involve any necessary obligation to do any more than have the witness in court ready to be examined.’ Wellar v. People, 30 Mich. 16, 22. See, also, People v. Henshaw, 52 Mich. 564, 18 N. W. 360.

A defendant has the right to rely on the fact that such a witness will be present. If his counsel announces that he desires to examine him, the prosecution should call him

[244 N.W. 439]

to the stand, thus evidencing the fact that he has performed his duty in that respect. By doing so, he does not make him a witness for the people. The defendant is under no obligation to examine him, but, if he chooses to do so, he becomes his witness. The general rule seems to be that he may cross-examine him, but, in doing so, he makes him his own witness. Wharton's Criminal Evidence, vol. 1, 942; 16 C. J. p. 846.

3. A young girl thirteen years of age, named Anna Surdick, was called as a witness for the defendant. She stated that she knew Lucile and had some talk with her in April last. She was then asked:

‘Q. I will ask you this: Did she say...