People v. Merhige

• Citation: 219 Mich. 95,188 N.W. 454
• Decision Date: 05 June 1922
• Docket Number: No. 115,April Term, 1922.,115
• Parties: PEOPLE v. MERHIGE.
• Court: Michigan Supreme Court

219 Mich. 95

188 N.W. 454

PEOPLE

v.MERHIGE.

No. 115, April Term, 1922.

Supreme Court of Michigan.

June 5, 1922.

Error to Superior Court of Grand Rapids.

Jad Merhige was convicted of robbery, and he brings error. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Fred A. Maynard, of Grand Rapids, for appellant.

Cornelius Hoffius, Pros. Atty., of Grand Rapids (Fred P. Geib, of Grand Rapids, of counsel), for the People.

CLARK, J.

For a statement of facts, see former opinion, People v. Merhige, 212 Mich. 601, 180 N. W. 418. Other necessary facts will be stated later in this opinion. Defendant has been convicted of robbery. He on error contends:

1. That a challenge to the array should have been sustained because the board of jury commissioners of the county returned no women to serve as jurors in the superior court of Grand Rapids. Women having requisite qualifications are entitled to act as jurors. And the qualifications of jurors are matters of legislative control. People v. Barltz, 212 Mich. 580, 180 N. W. 423, 12 A. L. R. 520. Act No. 505, Local Acts of 1903, amended by Act 347, Local Acts of 1905, created for Kent county a board of jury commissioners of five members, all to be appointed annually by the Governor. The clerk of the county was made clerk of the board and was required to keep a record of the proceedings. Division of the county into jury districts and returns from such districts by individual members of the board to the board of names of persons for service as jurors are provided by the act. The board once in each year selects from such lists for the courts of the county lists of jurors. Certain records are required to be kept. The act enumerates requisite qualifications of jurors, relating to character, health, education, etc., and subject thereto the selection of jurors is left to the judgment and discretion of the board.

The challenge was in writing, as required. Ryder v. People, 38 Mich. 269. It was verified. We discover in the record no answer or denial thereto. The burden of proof was on the defendant to show the invalidity of the proceedings by which the jury was obtained. People v. Coughlin, 67 Mich. 466, 35 N. W. 72. And it must be clearly established. It is not sufficient to show merely the probability of the invalidity or irregularity. State v. Green, 49 La. Ann. 60, 21 South. 124. The proof in support of the challenge may be oral or by affidavits. The latter is the better practice. 24 Cyc. 332. But, in the absence of statute, the court may direct in which form the evidence shall be produced. Eberts v. Mt. Clemens Sugar Co., 182 Mich. 449, 148 N. W. 810;State v. Linde, 54 Iowa, 139, 6 N. W. 168. It is said in 24 Cyc. 333:

‘A demurrer or exception to the challenge admits the facts alleged, and the court passes upon its sufficiency, assuming the facts alleged to be true. If, however, the challenge be denied the court proceeds to try the truth of the facts alleged; but if denied and no evidence is introduced in support of the challenge it is properly overruled, and if the challenge presents no legal ground of objection to the jury, it may be summarily overruled without any replication thereto being filed.’

If the truth of the challenge is to be contested, good practice would require an answer or replication or denial in writing. In People v. Coffman, 59 Mich. 1, 26 N. W. 207, and in People v. Coughlin, supra, a demurrer was filed, and in People v. McArron, 121 Mich. 1, 79 N. W. 944, an answer.

Disregarding that part of the challenge stated on information and belief and giving the remainder full force, it appears that jury lists for the superior court for 1920 and 1921 contained the names of no women, while the lists for other courts of the county did contain such names. To support the challenge defendant had testimony from the clerk of the superior court that, without authority, after the adoption of the suffrage amendment to the state Constitution in November, 1920, he suggested to certain of the board that no women be returned as jurors for that court, because of lack of suitable accommodations. If there was reply or answer to such suggestion, it is not shown. The clerk of the board was called to the stand, asked certain improper questions to which objections were sustained, and the matter was dropped; counsel stating that no further evidence would be offered. The records of the board were neither sought nor offered. No member of the board was called. The clerk was not asked to testify in respect to records and proceedings of the board.

Probably the omitting of women from such jury lists was arbitrary and intentional. But the persons returned as jurors were lawful and qualified. That the action of the board was arbitrary must be clearly established and beyond mere probabilities.

A similar case is People v. Coughlin, supra. Chippewa county was comprised of eight townships. In drawing 35 jurors, the officers omitted two of the townships, one, Sugar Island, the scene of the crime. Probably there, as it is probable in the case at bar, the omission was intentional. But it was held:

‘If it anywhere appeared that the officers who drew the jury had arbitrarily left out the townships from which jurors were not drawn, it would have been a good cause for quashing the array. But it does not so appear. The burden of proof was on the respondent to show the invalidity of the proceedings by which the jury was obtained. In the absence of a showing to the contrary, it must be presumed that these officers faithfully and correctly performed their duty in the premises.’

That the action of the board complained of was arbitrary or intentional is not so clearly established as to justify us in holding that overruling the challenge was reversible error. See section 12597, Comp. Laws of 1915.

2. That the court erred in ordering the defendant, who had been admitted to bail, into custody during the progress of the trial. When the trial had continued from February 17th to Saturday, March 5th, the defendant having been at liberty under bail of $12,000, with good and sufficient sureties, the court, not in the presence of the jury, ordered him into the custody of the sheriff, saying:

‘In this case I have been looking into the proceedings here; I have been looking at the bond in this case, and my own judgment is that the bond is entirely inadequate. There is a responsibility on the court to be more or less responsible for the sufficiency of a certain part of the proceedings, and one responsibility on the court is to be sure the respondent will be here. I am entirely satisfied that under the circumstances as they now stand, and some things that have come to my attention, I am satisfied that the present bond is entirely inadequate for the purposes of this case at this stage of the proceedings. This is Saturday noon. We adjourn over now until next Monday. This case is nearly over. It is an important case, and I want to be satisfied and sure that the respondent will be here Monday morning, and in my judgment the bond in this case, a bond of $12,000, is entirely insufficient to guarantee the attendance of the respondent. So the court now orders that respondent be placed in the custody of the officers, to be held in custody until a more sufficient bond should be given. Take charge of the respondent.’

And the court also said:

‘I fix the bond at this time at $30,000.’

Affidavits of jurors attached to the motion for a new trial state that it was known to jurors that the bail had been increased, and that thereafteer defendant was accompanied by an officer.

State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D, 191, is an important case upon this question. There the charge was murder. On the sixteenth day of the trial the judge ordered defendant who had been on bail into custody, saying:

‘In view of the testimony that has been thus far given in this trial, the court is constrained to say that it amounts to a presumption that under the law deprives the defendant of the right to go on bond, and he is hereby and for that reason remanded to the custody of the marshal.’

We quote from the opinion:

‘The defendant in this case does not contend that the court had no power to order him into custody while the trial was in progress. The contention is that, under the circumstances, the order was an abuse of discretion, and prejudicial to the interests of the defendant.

‘It must be conceded that, under some circumstances, it might become the duty of the court to order the defendant into actual custody. If, for instance, it should clearly appear to the court that the defendant intended immediate flight. Furthermore, if such order is made, it must be assumed, in the absence of a contrary showing, that the court acted in good faith and upon sufficient...