People v. Martin

• Decision Date: 21 June 1965
• Docket Number: No. 1,No. 88,88,1
• Citation: People v. Martin, 135 N.W.2d 560, 1 Mich.App. 265 (Mich. App. 1965)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Betty MARTIN, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan

Page 560

135 N.W.2d 560

1 Mich.App. 265

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Betty MARTIN, Defendant-Appellant.

Cal. No. 88.

Court of Appeals of Michigan, Division No. 1.

June 21, 1965.

George L. BeGole, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H Olsen, Pros. Atty., Detroit, for plaintiff-appellee.

Before QUINN, P. J., and FITZGERALD and KAVANAGH, JJ.

FITZGERALD, Judge.

On May 27, 1964, Betty Martin was arrested by an undercover agent of the Detroit police department and charged with the crime of accosting and soliciting under C.L.1948, § 750.448 (Stat.Ann.1954 Rev. § 28.703) which states:

'Any person who shall accost, solicit or invite another in any public place, or in or from any building or vehicle, by word, gesture or any other means, to commit prostitution or to do any other lewd or immoral act, shall be guilty of a misdemeanor.'

The arrest took place at 1:15 a. m. and defendant appeared in court the next morning with her attorney. When defendant's case was called, her attorney stated to the court:

'The defendant stands mute, waives trial by jury. She is ready to be tried.'

The parties were sworn and the trial proceeded, the only witnesses being the arresting officer and the defendant. Defendant was convicted and sentenced to 30 days. After an unsuccessful motion for a new trial, counsel for defendant now assigns as error the fact that the trial judge acted as 'judge, jury and prosecutor' and asserts that such a procedure is violative of the due process clause of the 14th Amendment to the United States Constitution.

The record discloses that no representative of the prosecutor's office was present at the trial. The arresting officer gave the court a report as to what happened by referring to his writ-up. Defense counsel cross-examined the vice officer and also conducted a direct examination of defendant, thus permitting a full airing of the facts.

It is difficult to understand why defense counsel contends that the absence of a prosecutor prejudiced his case. Such absence might readily be construed as a benefit to the defense in most cases, particularly those where defendant takes the stand and opens himself to cross-examination. A review of the testimony reveals that the judge did not, in fact, act as 'prosecutor' but rather listened to the case, asking only pertinent questions, decided it and passed sentence.

Were there some requirement that a representative of the prosecutor's office be present, it might be said that the absence was prejudicial. We are, however, faced by the statutory provision of C.L.1948, § 49.154 (Stat.Ann.1961 Rev. § 5.752) which states:

'Each prosecuting attorney shall, when requested by any magistrate of the county, appear in behalf of the people of this state before any such magistrate * * * and prosecute all complaints made in behalf of the people of this state * * *.' (Emphasis supplied.)

Clearly, there is no statutory requirement that a representative of the prosecutor's office be present. Buttressing the decision that defendant may not complain of the prosecutor's absence is the fact that the procedure was accepted during the trial and no objection made, thereby preventing it from being urged on appeal. It has frequently been held by the Supreme Court of this state that objections not raised during trial and not passed upon by the trial court are generally not considered on appeal. People v. elliott (1948), 322 Mich. 313, 33 N.W.2d 811 states the concept clearly: '[C]ounsel cannot sit idly by and then, for the first time, interpose objections after the accused has been convicted.'

Defendant further contends that the uncorroborated testimony of a police officer as against the testimony of the defendant is not sufficient to constitute guilt beyond a reasonable doubt. It is elemental that the court can choose to believe either one of two witnesses before him. The issue is one of credibility and we do not choose to disturb the judgment of one who saw the witnesses, listened to them and then weighed their testimony in open court. People v. Chesbro (1942), 300 Mich. 720, 2 N.W.2d 895.

Particular emphasis is urged by defendant that a comment by the trial judge indicated that she was not able to secure a fair hearing before him. Following is the statement of the judge claimed to be offensive:

'THE COURT: No, I don't want any prostitutes, at least when I am on duty, I don't want any prostitutes on Washington Boulevard. I will find her guilty of accosting and soliciting. Thirty days in the Detroit House of Correction.'

Even cursory examination of this statement, made after all the proofs were in, reveals that it goes to the sentencing process and not to the conviction. The remarks were not made to a jury which could be swayed by them.

An exchange between defense counsel and the judge before whom the motion for a new trial was made fairly sums up the fact that such a remark does not indicate...