People v. Marvill, 123

• Decision Date: 08 December 1926
• Docket Number: No. 123,Oct. Term.,123
• Parties: PEOPLE v. MARVILL.
• Court: Michigan Supreme Court

236 Mich. 595

211 N.W. 23

PEOPLE

v.MARVILL.

No. 123, Oct. Term.

Supreme Court of Michigan.

Dec. 8, 1926.

Error to Recorder's Court of Detroit; Charles L. Bartlett, Judge.

Frances Marvill was convicted of assault with intent to do great bodily harm, less than the crime of murder, and she brings error. Reversed, and new trial granted.

Argued before the Entire Bench. Nichols, Nichols & Barnett, of Detroit, for appellant.

Andrew B. Dougherty, Atty. Gen., and Robert M. Toms, Pros. Atty., of Detroit, for the People.

WIEST, J.

Convicted of the crime of assault with intent to do great bodily harm, less than the crime of murder, defendant prosecutes review by writ of error.

The jury found that defendant, with intent to do great bodily harm, threw acid in the eyes of Calvin Mann and destroyed his eyesight. The defense was an alibi. A motion for a new trial was made and included a request for reasons, in writing, if it was denied. The motion was denied without compliance with such request. Defendant asked to have reasons, in writing, given for incorporation in the bill of exceptions. C. L. 1915, § 12635. Failure, however, of the judge to comply with this right of defendant will not prevent review of the ruling on the motion, if an exception was taken. Clark v. Onaway-Alpena Telephone Co., 196 Mich. 168, 182, 163 N. W. 44;Blaty v. Gray, 217 Mich. 531, 187 N. W. 360. We find no exceptions so taken. Assignments of error accompanying the bill of exceptions do not serve the office of such an exception. We have, however, looked into the record and find no reason for holding the verdict against the great weight of the evidence.

Mr. Mann testified that he recognized defendant at the time she threw the acid in his eyes. The only serious error alleged relates to the instruction to the jury upon alibi.

In 8 R. C. L. 124, it is stated:

‘Although alibi is frequently characterized as a defense, it is not such within any accurate meaning of that word, but is merely a fact in rebuttal of the state's evidence.’

This statement makes clear the reason why an accused is not required to fully establish an alibi to have, at least, the benefit thereof, so far as it may go, in rebuttal of the proofs of the prosecution. Testimony in support of an alibi may accomplish no more than the raising of a reasonable doubt as to the sufficiency of the proofs connecting an accused with the crime alleged or render such proofs unsatisfactory. If the testimony relative to an alibi serves such purpose, it creates a reasonable doubt as to the guilt of an accused. In other words, an alibi may fail as a substantive defense and yet serve to raise a reasonable doubt as to the guilt of an accused. Having stated the rule of law, it remains to consider whether there was error in the instruction to the jury upon such subject. In fairness to the trial judge, we state all the instruction he gave on the subject. The instruction follows:

‘Now, there has something been said about an alibi. Now, the defense introduced in this case is what is known as an alibi, that is, that the defendant was not at the place where the crime is alleged to have been committed. Such a defense is as legitimate as any. In fact, if it is sustained, there can be no better defense, because, if the defendant was not at that place, it is impossible that she could have committed the crime charged; and the defense and the testimony in its support should be given your careful consideration. If true, or if you have a reasonable doubt as to whether or not it is true, then the defendant is entitled to an acquittal at your hands. But our highest courts, among them our own Supreme Court, have said, in effect, that the defense of an alibi should be carefully scrutinized by the jury and received with caution, because it is one easily made or manufactured, and that rule should be applied by you to this defense in this case. At the same time, as I said before, this defense and the testimony in its support should be considered by you and given such weight as, taking into consideration the witness or witnesses by whom that testimony was given, the interest, if any, that such witness or witnesses has or have in the outcome of the case, and all the surrounding circumstances, you, as reasonable men of common sense, consider that it is entitled to. If the alibi is sustained, you should, of course, acquit. However, if, after hearing the testimony as to the alibi, you find that it is not sustained, you should disregard it entirely. If you are satisfied beyond a reasonable doubt that it is not sustained, that any witness has willfully and knowingly sworn falsely to such alibi, or to any matter material to the case, then you may take this into consideration as bearing on the question at issue in this case and as affecting the credibility of the witness who has sworn thereto, and you are at liberty to entirely disregard all the testimony of any witness whom you find has willfully and knowingly sworn falsely as to anything material to the issue in this case.’

It will be noted that the trial judge first stated the rule and then nullitied it by charging the jury to disregard alibi entirely, if they found it was not sustained.

As stated in the annotation, 29 A. L. R. 1127:

‘The offering of evidence to prove an alibi should not be regarded as in any sense an attempt to prove an independent, affirmative defense. The prosecution must prove the defendant's presence [in those cases where presence is...