People v. Measles
| Citation | 59 Mich.App. 641,230 N.W.2d 10 |
| Decision Date | 13 March 1975 |
| Docket Number | Docket No. 20367,No. 2,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mary Terese MEASLES, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Newman & Mackay, William L. Mackay, Lansing, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.
Before ALLEN, P.J., and T. M. BURNS and MAHER, JJ.
On October 30, 1973, defendant Mary Terese Measles was convicted by a jury of larceny in a building. M.C.L.A. § 750.360; M.S.A § 28.592. On February 22, 1974, the trial court entered an order delying imposition of sentence until February 22, 1975. M.C.L.A. § 771.1; M.S.A § 28.1131. Defendant now appeals her conviction as of right. Only those facts necessary to the resolution of the issues before us will be presented.
Defendant claims that the trial court erred in denying her motion for a mistrial based on the fact that the store security officer who apprehended her indicated that some of the notes from which he was testifying 'concern another situation a month later with the subject'.
The test for a mistrial motion is 'not whether there were some irregularities but instead did not defendants have a fair and impartial trial'. People v. Foster, 51 Mich.App. 213, 217, 214 N.W.2d 723, 726 (1974). People v. Watson, 307 Mich. 596, 606, 12 N.W.2d 476, 480 (1943). In this case, the security officer's unresponsive remark came as a result of a question posed to him by the trial court during cross-examination. When defense counsel objected, the trial court immediately purged the record of the objectionable testimony. The court then asked the jury if they could disregard the statement made by the security officer, and they responded affirmatively. Finally, the trial court instructed the jury to disregard the statement completely since it had nothing to do with the case and could not be considered by them.
Under these circumstances, we find no error. An unresponsive answer to a proper question is not usually error. People v. Histed, 56 Mich.App. 630, 634--635, 224 N.W.2d 721 (1974), see also Detroit v O'Connell, 19 Mich.App. 538, 172 N.W.2d 875 (1969), wherein the Court cited People v. Todaro, 253 Mich. 367, 35 N.W. 185 (1931). In our opinion, this singular unresponsive remark by the witness did not deprive defendant of a fair and impartial trial and it was not error, therefore, to deny the motion for a mistrial. The instructions of the court sufficiently informed the jury how to evaluate the evidence presented to them and the cautionary instruction which the trial court gave was sufficient to protect the rights of the defendant. If defendant desired further instruction to the jury, a request should have been made.
Defendant next contends that the jury's verdict was void and that she is, therefore, entitled to a new trial. When the trial court asked the foreman of the jury for their verdict, he responded, 'guilty of larceny'. The trial court then established that their verdict was in fact that defendant was guilty of larceny in a building. In order to clarify the verdict, the jury was polled and each juror responded affirmatively when asked 'was that and is this your verdict of guilty of larceny in a building?'
Defendant was not charged with larceny, the trial court did not instruct as to it, nor was such an instruction requested by defense counsel who conceded that they only possible verdicts were guilty or not guilty of larceny in a building. In People v. Holliday, 44 Mich.App. 210, 216, 205 N.W.2d 93, 96 (1972), this Court held as follows:
...
To continue reading
Request your trial
-
People v. Combs, Docket No. 23480
...that it could convict the defendant of breaking and entering without intent to commit a larceny. Accord, People v. Measles, 59 Mich.App. 641, 643--644, 230 N.W.2d 10 (1975). However, it should be noted that it is better practice for the court to request the jury to return its verdict in its......
-
People v. Lester
...People v. Todaro, 253 Mich. 367, 235 N.W. 185 (1931); People v. Rimson, 63 Mich.App. 1, 233 N.W.2d 867 (1975); People v. Measles, 59 Mich.App. 641, 230 N.W.2d 10 (1975); People v. Histed, 56 Mich.App. 630, 224 N.W.2d 721 In the instant case, the answer was made during cross-examination by t......
-
People v. Almond
...to a proper question, which was properly stricken from the record and the jury instructed to disregard the same. People v. Measles, 59 Mich.App. 641, 230 N.W.2d 10 (1975), People v. Histed, 56 Mich.App. 630, 224 N.W.2d 721 (1974), People v. Swann, 44 Mich.App. 329, 205 N.W.2d 281 (1973), Pe......
-
People v. Reese, Docket No. 77-1744
...in the Court's decision was that the improper testimony was elicited by a question from the prosecutor. In People v. Measles, 59 Mich.App. 641, 642-643, 230 N.W.2d 10 (1975), the fact that a security officer indicated that he was referring to notes which also contained references to another......