People v. Maloy

• Decision Date: 07 February 1919
• Docket Number: No. 120.,120.
• Citation: 204 Mich. 524,170 N.W. 690
• Parties: PEOPLE v. MALOY.
• Court: Michigan Supreme Court

204 Mich. 524

170 N.W. 690

PEOPLE

v.MALOY.

No. 120.

Supreme Court of Michigan.

Feb. 7, 1919.

Exceptions from Circuit Court, Ottawa County; Orien S. Cross, Judge.

Claude Maloy was found guilty of the crime of adultery by jury, and brings case to Supreme Court upon exceptions before sentence. Reversed, and new trial ordered.

Argued before BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ.

Stone and Ostrander, JJ., dissenting. Fred T. Miles, Pros. Atty., of Holland, for the People.

Louis H. Osterhous, of Grand Haven, and John M. Dunham, of Grand Rapids, for respondent.

MOORE, J.

The circuit judge charged the jury in part as follows:

‘In the information filed in this case the people charge this respondent, Claude Maloy, with the offense of adultery. It is the claim of the people that on the 23d day of February, 1918, the respondent Claude Maloy, left Grand Rapids with Mrs. Jessie Emmons, and that they went to Holland, in this county, and there went to the Hotel Bristol and engaged a room, and remained there in the room Saturday and Sunday nights and until Monday morning; that there was only one bed in the room, and that the parties there had sexual intercourse and thereby committed adultery; that the parties were not married to each other; that Claude Maloy was at the time a married man, and had a lawful wife, and that the said Jessie Emmons was at the time the wife of Hayes Emmons; and the people claim that the respondent is guilty of the offense of adultery, as charged in the information in this case.

‘It is the claim of the respondent in this case, not only that the allegations made by the people in the complaint, warrant, and information filed in this case are false and untrue, but that there has been a total failure of proof upon these allegations.

‘It is the claim of the respondent that he did not commit the crime charged in the information at the time and in the manner and form therein charged. He claims, further, that this prosecution was instigated by Hayes Emmons, the husband of Jessie Emmons, who was also arrested and charged with the same crime, or participating in the same crime, as respondent, and that the said Hayes Emmons seeks conviction of the respondent in this case and the said Jessie Emmons for the sole purpose of defeating her claim for permanent alimony, or any right to the property now held by the said Hayes Emmons.

‘The respondent claims, further, and there is no dispute upon the fact, that a divorce case is now pending in the circuit court for the county of Kent, in chancery, wherein the said Jessie Emmons is the plaintiff, and the said Hayes Emmons is defendant, and that said suit was begun some time in the month of March, 1918, and prior to the complaint in this case; that in the divorce case the respondent is represented by William J. Barnard, of Paw Paw, who was his attorney in a former divorce case; and it is the claim of the respondent that the said attorney, acting for his client, endeavored to get said Jessie Emmons to sign off and release her interest in her husband's property prior to the filing of the said divorce case, and, when she refused, threatened her with arrest for adultery; that the only motive in this case is to convict this respondent and the said Jessie Emmons, so that Hayes Emmons may not have to pay any alimony in said divorce case.’

The jury returned a verdict of guilty. The case is here upon exceptions before sentence.

The assignments of error raise three questions:

(1) Was the testimony of the respondent given, because subpoenaed as a witness in the divorce case, competent evidence in this trial upon the main case?

(2) Was the so-called confession made to Sheriff Dornbos competent?

(3) Did the conduct of the prosecuting attorney throughout the trial of this case constitute prejudicial error?

The record shows an anomalous condition. Mr. Maloy was subpoenaed as a witness in the divorce case by the defendant. He was called as a witness by the plaintiff. He had given 15 pages of testimony before there was a suggestion that he had the constitutional right to claim privilege from testifying. All that occurred then was a suggestion.

‘The Court: I suppose he has a right to claim his constitutional privilege at any time.’

There is nothing to indicate that he was advised of what his constitutional rights were, or that he had knowledge of what they were. Indeed, counsel on both sides seemed enger to get his testimony, and neither of them objected to the testimony.

Testimony taken under these circumstances was permitted to be read in the criminal case, not by way of impeachment, for Mr. Maloy was not sworn in that case, but as substantive proof of a criminal offense, thus making him, against his protest, a witness against himself.

Mr. Maloy was in attendance upon court in the divorce case in response to a subpoena. He was sworn as a witness. His testimony was not voluntarily given. Before it could be used as an admission against him in a criminal case not yet in existence, it must appear that he was advised of his constitutional rights. This does not appear. See article 5, Const. U. S. Amend. 5; section 16, art. 2, Const. Mich.; People v. Lauder, 82 Mich. 109, 46 N. W. 956;In re Mark, 146 Mich. 714, 110 N. W. 61;In re Allison, 156 Mich. 34, 120 N. W. 19;People v. Forbes, 143 N. Y. 219, 38 N. E. 303. It was error to admit this testimony.

2. Was the testimony of Sheriff Dornbos competent? This testimony was given without objection. The cross-examination drew out the fact that respondent knew he was talking with the prosecuting attorney in the presence of the sheriff, and he was told he need not answer the questions unless he wanted to. The next day a motion was made to strike out the testimony. This was not done. There is no doubt the court, if requested, would have charged the jury properly as to how they should regard the evidence. See Tiffany's Criminal Law, 633. As to this feature of the case the record does not show reversible error.

3. Did the conduct of the prosecuting attorney throughout the trial of the case constitute prejudicial error? The claim that it did is based upon the calling of Mrs. Emmons as a witness, and the offering in evidence of certain letters and written papers found in the drawer of a piece of furniture in a room which had been used by the respondent. We quote from the brief of counsel:

‘Why did the prosecutor indorse upon the information the name of Jessie Emmons, and call her as a witness on behalf of the people? She was complained against with the respondent, although they were informed against singly. ...