People v. MacPherson

Citation323 Mich. 438,35 N.W.2d 376
Decision Date03 January 1949
Docket NumberNo. 86.,86.
CourtSupreme Court of Michigan


Appeal from Circuit Court, Macomb County; Alton H. Noe, judge.

G. Boyd MacPherson was convicted of failing to stop his automobile at scene of accident and for failing to render aid to injured person, and he appeals.

Verdict and judgment set aside, and case remanded for a new trial.

Before the Entire Bench, except DETHMERS, J.

Eugene F. Black, Atty. Gen., of Michigan, and Edmund Shepherd, Sol. Gen., of Lansing, Edward A. Jacob, Pros. Atty. for Macomb County, and Frank G. Giambrone, Asst. Pros. Atty. for Macomb County, both of Mount Clemens, for plaintiff-appellee.

Hugh H. Neale, of Mount Clemens, and Davidow & Davidow, of Detroit, for defendant-appellant.

Daniel J. O'Hara, Asst. Atty. Gen., for the People.

CARR, Justice.

This case resulted from a traffic accident occurring on a public highway in Macomb county on October 18, 1943, shortly after 8 o'clock in the evening. It was the claim of the people that an automobile driven by defendant struck the person of one Joseph Baldwin and that, as a result of the injuries received by him, Mr. Baldwin died three days later. Complaint was made before a justice of the peace, a warrant issued and a preliminary examination was held, at the conclusion of which defendant was bound over to the circuit court for trial. Thereafter a motion to quash the information was granted, and the case was dismissed without prejudice to the right of the people to institute such other action as might be deemed advisable. Thereupon, a new complaint was made and a warrant issued. Defendant waived examination before the magistrate, was bound over to the circuit court, and on trial before a jury was convicted.

The charge against defendant was based on an alleged violation of the provisions of Comp.Laws 1929, § 4722, as amended by Act No. 318, Pub.Acts 1939, Comp.Laws 1940 Supp. § 4722, Stat.Ann.1947 Cum.Supp. § 9.1590. Insofar as material such section, which is section 30 of the uniform motor vehicle act, provides as follows:

(a) The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop such vehicle at the scene of such accident and any person violating this provision shall upon conviction be punished as provided in section 56 of this act.

* * *

(c) The driver of any vehicle involved in any accident resulting in injury or death to any person shall also give his name, address, and the registration number of his vehicle, also the name and address of the owner, and exhibit his operator's or chauffeur's license to the person struck or the driver or occupants of any vehicle collided with and shall render to any person injured in such accident reasonable assistance including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or is requested by the injured person, and any person violating this provision shall upon conviction be punished as provided in section 56 of this act.’

The provisions quoted must be read in conjunction with section 56 of the uniform motor vehicle act, referred to therein. Said section, Comp.Laws 1929, § 4748, as amended by Act No. 262, Pub.Acts 1941, Comp.Laws 1945 Supp. § 4748, Stat.Ann.1947 Cum.Supp. § 9.1617, reads, in part, as follows: ‘Every person who is the driver of a vehicle and who knows such vehicle has been involved in an accident and who is convicted of violating the provisions of either subsections A or C of section 30 of this act in connection with such accident shall be punished by imprisonment in the county or municipal jail for not less than 30 days nor more than 1 year, or in the state prison for not less than 1 nor more than 5 years, or by fine of not less than $100.00 nor more than $5,000,00 or by both such fine and imprisonment.’

The information on which defendant was tried followed the statutory provisions quoted, alleging that on the 18th day of October, 1943, at the township of Warren, in Macomb county, ‘One G. Boyd MacPherson being then and there the driver of a motor vehicle which motor vehicle was then and there involved in an accident at the intersection of Van Dyke and Orchard Streets in the said Township of Warren, and which accident did then and there result in injury to one Joseph Baldwin, from which injury the said Joseph Baldwin on the 21st day of October, A.D. 1943, did die, of which accident and injury the said G. Boyd MacPherson had knowledge did knowingly and wilfully then and there fail and neglect to immediately stop said motor vehicle at the scene of said accident contrary to the form of the statute in such case made and provided and against the peace and dignity of the People of the State of Michigan;’

The second count of the information further charged defendant with failure to give his name, address and the registration number of his motor vehicle, and to exhibit his operator's license to Joseph Baldwin and render to Baldwin reasonable assistance. Following the arraignment, defendant gave notice of an alibi,1 stating therein that at the time of the alleged offense he was at a certain restaurant in the city of Detroit. This defense was urged on the trial. At the conclusion of the plaintiff's case counsel for defendant moved for a directed verdict, which motion was denied. Following the verdict of the jury a motion for a new trial was made, and it also was denied. On leave granted defendanthas appealed, claiming that errors requiring a reversal were made in the course of the trial.

On behalf of defendant it is urged that the evidence in the case was insufficient to support the verdict of the jury, and that the court was in error in denying the motion for a directed verdict. We are unable to agree with this contention. The proofs offered in support of the charge against defendant were sufficient to establish the accident and the resulting death of Joseph Baldwin. Testimony was also introduced tending to show that defendant was the owner of the car causing the injury, that the vehicle did not stop at the scene of the accident, that it was followed for some distance, and that defendant left the vehicle, from beneath the steering wheel, at a point in close proximity to his place of business. The credibility of the witnesses for the people was for the jury, and it is apparent from the verdict that the jury accepted the proofs offered by the people, rejecting defendant's claim that, if his car was involved in the accident, he was not driving the vehicle at the time. The record fully justified the submission of the questions at issue to the jury. On the record before us it cannot be said that the evidence was not sufficient to support the verdict rendered.

Error is also assigned on the admission of the testimony of three witnesses, given on the preliminary examination under the original complaint and warrant. A showing was made by the people indicating that search had been made for these witnesses, in order to serve them with subpoenas requiring their appearance at the trial, and that they could not be located. The trial court held that the showing made as to the effort to produce the witnesses was sufficient, and admitted the testimony. Defendant contends that it was incompetent because not given in the course of the criminal proceeding which finally resulted in the conviction. Reliance is placed on article 2, section 19, of the State Constitution, guaranteeing to the accused in every criminal prosecution the right ‘to be confronted with the witnesses against him’. Emphasis is placed on the fact that, following the dismissal of the case on motion in the circuit court, a new complaint was made and a warrant issued in accordance therewith. On behalf of the people it is insisted that the preliminary examination before the magistrate concerned the alleged offense of which defendant has been convicted. It is also pointed out that the testimony now in question was taken without objection as to its relevancy and materiality or the legal sufficiency of the complaint and warrant, and that the right of cross-examination of the witnesses was not in any way abridged.

We do not find it necessary to determine whether, under the situation disclosed by the record, the testimony was competent on the trial. The witnesses in question were apparently offered on the preliminary examination for the purpose of proving defendant's whereabouts during the afternoon of October 18, 1943. None of them testified to having seen defendant during the time when the accident occurred. Except as to details that would seem to be immaterial, their testimony was in accord with defendant's as to his movements in the afternoon preceding the occurrence on which the prosecution was based. As before noted, the defense rested on the claim of alibi, notice of which was properly given, namely, that defendant was in a certain restaurant in the city of Detroit when the accident happened. It was defendant's theory that his car had been stolen from the place where he had parked it before entering the restaurant. On this record it does not appear that the testimony of any of the three witnesses in question tended in any material respect to impeach or contradict defendant's claim. In view of the record, it cannot be said that defendant was prejudiced by the admission of the testimony of these witnesses given on the preliminary examination.

On the trial of the case the people produced as a witness the widow of Joseph Baldwin. She testified, in substance, that Mr. Baldwin went to work as usual on the 18th of October, 1943, that she next saw him that evening in the hospital, and that he died at 7 o'clock in the evening of October 21st. When the prosecuting attorney called her to the stand, counsel for defendant stated in open court that he would concede that Joseph Baldwin was alive previous to the 18th of October. With the permission...

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