People v. Mead

• Decision Date: 27 February 1883
• Citation: 50 Mich. 228,15 N.W. 95
• Court: Michigan Supreme Court
• Parties: PEOPLE v. MEAD.

15 N.W. 95

50 Mich. 228

PEOPLE v. MEAD.

Supreme Court of Michigan

February 27, 1883

A witness cannot put error into a case by an unauthorized remark, neither called out by a question nor sanctioned by the court; but where what he says improperly is, by order of the court, immediately stricken out, no error is committed.

Although an accused party, who is of good reputation, is entitled to the benefit of it in all cases, an instruction to the jury that if the evidence was convincing beyond a reasonable doubt, it was their solemn duty to convict notwithstanding the good reputation, is not error.

The evidence admitted under objection tended to connect the accused with the commission of the crime charged, and was properly allowed to go to the jury.

Error to Shiawassee.

J.J. Van Riper, for plaintiff.

G.R Lyon, for defendant and appellant.

COOLEY J.

The respondent stands convicted of feloniously breaking into the house of one Gregory, and committing a larceny therein. The house was a farm-house in the country, and it was shown that several houses in the neighborhood were broken open the same night. At the house of one Mitchell a plate of butter was taken. The wife of Gregory, who was in bed when the burglary was committed, testified on the trial that she saw the burglar with sufficient distinctness to enable her to recognize him afterwards, and that two days thereafter when in company with her husband she saw the respondent and told her husband she believed him to be the man. The husband was subsequently sworn, and after calling his attention to this subsequent occasion, he was asked, whether his wife then recognized any person as the person she saw that night. He answered in the affirmative, and was then further asked whether she recognized the respondent as the man. This was objected to, but the court ruled that it was proper to show that the fact of recognition was communicated to her husband, without stating what she said. The question was then put in this form: Did she recognize anybody? This was objected to, but allowed, and the witness answered, she did. The further question was then asked: Whom did she recognize? And the answer given was: This defendant; she recognized him as being the man that was in her bed-room on the first of November, the time of the burglary. I told her to be sure, and she says, I am sure.

It will be observed that in this the witness went altogether beyond the question, and beyond any permission that could be implied from the ruling of the judge. The question was simple: Whom did she recognize? It was also proper enough to put it, as introductory to what the witness himself had to say respecting his own subsequent investigations. But the witness, not content with giving a simple answer to it, added what in effect was a statement that his wife told him she recognized the respondent as the burglar. The statement was hearsay, and it was likely to be exceedingly mischievous, for much depended in the case upon this recognition. But the judge immediately, without waiting for any objection, ordered what was said beyond the simple answer to the question to be stricken out. It is said on behalf of the respondent that this did not undo the mischief: the statement had gone to the jury and would leave its effect, whatever ruling the judge might make on the subject. This may be true; and so may any unwarranted remark made by a stranger in the presence of the jury or of any of them have an injurious effect. But the conviction is to be tested in this court by the rulings of the judge; and if no errors are pointed out in them, it must stand. A witness cannot put error into a case by an unauthorized remark, neither called out by a question nor sanctioned by the judge; and if what he does or says improperly is likely to do much mischief, it is presumed the judge will apply the proper corrective in his instructions if requested to do so. In this case he applied it on the instant, so far as ruling out the improper statement could do so; and no doubt he would have given specific caution to the jury if requested. But it is clear that such fault as there was in the case was that of the witness; the rulings of the judge were correct.

The prosecution was also allowed to give evidence that on the next day after the burglary the respondent picked up near the road fence the plate on which the butter had been carried off from Mitchell's, claiming to have just found it there. It is objected that this evidence, if of any force at all, could only have tended to connect the respondent with the burglary at Mitchell's, or at least to have raised a suspicion that he was concerned in it. The prosecution concede that if it had no tendency to connect the respondent with the particular offense for which he was on trial, it should not have been received; but their...