People v. Minchella, 147.
| Decision Date | 02 July 1934 |
| Docket Number | No. 147.,147. |
| Citation | 268 Mich. 123,255 N.W. 735 |
| Parties | PEOPLE v. MINCHELLA. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Recorder's Court of Detroit; W. McKay Skillman, Judge.
Charles Minchella, alias Charles Mitchell, was convicted of kidnapping, and he appeals.
Affirmed.
Argued before the Entire Bench.
Frank M. Kenney, Jr., of Detroit, for appellant.
Patrick H. O'Brien, Atty. Gen., and Harry S. Toy, Pros. Atty., W. Gomer Krise, Chief Asst. Pros. Atty., and Frank Schemanske and Edmund E. Shepherd, Asst. Pros. Attys., all of Detroit, for the People.
The defendant, Minchella, and one Vincent Lamonna were tried, convicted, and sentenced under an indictment charging them with having, on the 30th day of September, 1929, kidnapped one Jackie Thompson. Minchella, hereafter spoken of as the defendant, appeals.
Prior to the opening of the trial, defendant's counsel moved to quash the indictment on the ground that the grand jury was restricted in its powers, and had no right to find the indictment. A quite similar question was presented in People v. Kaplan, 256 Mich. 36, 239 N. W. 349, and held to be without merit.
A challenge was interposed to the array of jurors. They were summoned under the provisions of Act No. 83, Pub. Acts 1923, which was adopted in the city of Detroit on November 6, 1923, and became effective nine days thereafter. The challenge was properly overruled.
Defendant's counsel insisted that under the charge as laid they were entitled to 20 peremptory challenges. The punishment provided for kidnapping is ‘by imprisonment in the state prison for any term of years, or by a fine of five thousand (5,000) dollars, or by both such fine and imprisonment, in the discretion of the court.’ Comp. Laws 1929, § 16732.
Section 12 of the chapter 8 of our Code of Criminal Procedure (Comp. Laws 1929, § 17305) provides that: ‘Any person who is put on trial for an offense which is not punishable by death or life imprisonment shall be allowed to challenge peremptorily five (5) of the persons drawn to serve as jurors and no more.’
The section following reads: ‘Any person who is put on trial for an offense punishable by death or imprisonment for life, shall be allowed to challenge peremptorily twenty (20) of the persons drawn to serve as jurors, and no more.’
Section 17305 clearly applies to a kidnapping charge. The sentence imposed may be for any term of years, or by a fine. Imprisonment for life may not be imposed thereunder. There was no error in limiting the right of peremptory challenge to five jurors.
Error is assigned upon the admission of the testimony of Betty Kendall. When she was called, the jury were excused at the request of defendant's counsel, and she was interrogated as to her relation to the defendant, the claim being made that she was his wife. Defendant's counsel asked her if she knew the defendant, and she answered in the affirmative. He then asked her, ‘Are you his wife?’ to which she answered, ‘No, sir.’ She further testified that she was then 25 years of age; that she was married in the state of Indiana to George Leader, and lived with him for 3 years; that her sister told her that she had read in a paper that her husband got a divorce; that she later married one Arlene Null; that ‘he was supposed to get a divorce, and he is married again now’; that she began living with the defendant as his mistress in Detroit in 1929; that they later went to Chicago, where they lived at an hotel under the name of Mr. and Mrs. Charles Fournier, and, while living with him, ‘we signed papers for a rooming house as husband and wife and we took each other as husband and wife at that time.’ She admitted that she had said to the prosecutor that she was ‘just living with him,’ and that ‘he said sometime we would get married but he wouldn't say just when.’ We find no error in the admission of her testimony.
Jackie was but five and a half years of age at the time of his abduction, and seven and a half years old at the time of the trial. His was the only direct evidence connecting the defendant with the commission of the crime, and defendant's counsel strongly urges that it was insufficient to base a conviction upon, and that, in any event, a new trial should have been granted for this reason. His examination disclosed that he was an unusually bright boy. Before he was permitted to testify, he was examined by the court to ascertain whether he had sufficient intelligence and sense of obligation to tell the truth, as required by section 14222, Comp. Laws 1929, and no objection was made by defendant's counsel to the fact that no oath or affirmation was administered to him.
There is no dispute about the fact that, while Jackie was playing in front of his father's home, he was kidnapped by two men, who took him some distance to a cottage for 2 days, and then taken by the same men to a farm, where he was kept concealed for 24 days, and then returned to his father after payment by him of the ransom agreed upon therefor. Jackie positively identified the defendant as the man who drove the car on both occasions. He also identified the car in which he was taken, and it was clearly established that the car belonged to the defendant. He was submitted to a rigid cross-examination by one of defendant's attorneys, and his testimony was not shaken as to any material fact.
His credibility and the weight to be given to his testimony were for the jury to pass upon, and also for the court on the motion for a new trial. Some children are very observant and are able to detail with much accuracy that which they may see and hear. There were some corroborating circumstances. Lamonna, as a witness, admitted that he participated in the negotiations for ransom, but claimed that he had been forced to take part in them. Before his arrest, he and the defendant met and had several private conferences in New York, and they had together gone to a police officer in Detroit to intercede on behalf of James Fernando, who was then under arrest, charged with the kidnapping, and to whom the ransom had been paid. We find no error in the ruling of the court in this respect.
Error is assigned upon the admission of the testimony of Paul H. Wencel, a detective lieutenant in the city police department. He testified that, after observing the actions of the defendant and Betty Kendall, heretofore referred to, he arrested the defendant, and, while riding in the rear seat of a car on the way to the police station, he asked the defendant what he was doing in the neighborhood, and he answered, ; that defendant took out his pocketbook, and offered him a hundred dollar bill, and later increased the offer to fifty dollars more as the car was pulling into the station. He stated that his name was Charles Mitchell.
As to his reason for making the arrest, the officer testified that he saw the two of them driving in a residence district in a car with an Illinois license on it; that he went to his home near by, and that ...
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