People v. Moshier, 79.
| Decision Date | 11 October 1943 |
| Docket Number | No. 79.,79. |
| Citation | 306 Mich. 714,11 N.W.2d 300 |
| Parties | PEOPLE v. MOSHIER. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Winnifred Moshier was convicted of manslaughter, and she appeals.
Affirmed.Appeal from Circuit Court, Iosco County; Herman Dehnke, judge.
Before the Entire Bench.
Bernard S. Frasik, of Bay City, for Winnifred Moshier.
H. Read Smith, Sp. Pros. Atty., of Tawas City, and Herbert J. Rushton, Atty. Gen. for the People.
The defendant was tried before a jury in Iosco county on an information charging her with murder of the first degree, convicted and sentenced for the crime of manslaughter. A motion for new trial was made on three separate grounds, and denied by the trial court. On appeal, the defendant argues that the circuit judge was guilty of an abuse of discretion in refusing to grant a new trial, and relies on the same grounds for reversal.
On or about June 23, 1936, a ten-year-old boy, named Robert Kenyon, was reported to the State police at West Branch as missing from the home of his aunt in Reno township, Iosco county, where he had been staying. Late in the afternoon of June 22d the boy and his aunt had been going to a pasture after the cows when Robert left her at the gate of the pasture and started toward the nearby flats of the Au Gres river. He did not return, search of the neighborhood was made, and the officers notified. Four days later his mutilated body was found in the Au Gres river nearby. His throat had been cut; there was no doubt that a crime had been committed. Little progress was made in solving the mystery of the murder until about four years later when the defendant confessed having committed the crime and was placed on trial.
1. For reversal and a new trial, the defendant urges that she was not adequately represented by counsel at the trial-that her attorney was incapacitated by being under the influence of intoxicating liquor. He was the attorney of her choice. We have examined the record with care, to find any indication of laxness or incompetence of her attorney. His presentation of defendant's proofs was able, and his cross-examination was keen and at times masterly. He ably presented the theory of the defense, that the defendant was a weak-minded woman misled into a confession thinking that she was merely writing a story for publication. He succeeded in reducing the conviction to manslaughter when a verdict of murder in the first degree might reasonably have been returned. He had been a practicing attorney 16 years, an assistant prosecutor of Wayne county and an assistant attorney general of the State. The circuit judge, an experienced and learned jurist, would not have allowed the defendant's right of trial by jury to be prejudiced in the manner claimed, had it occurred. We find nothing in the record to justify any finding of a miscarriage of justice on this claim of error.
2. Defendant's second ground urged for reversal and a new trial is stated as follows: ‘In view of the newly discovered evidence pointing to the probability that some other person committed the crime of murder in taking the life of Robert Kenyon and pointing to the further probability that a new trial would bring a different verdict.’
In support of her motion, the defendant filed three affidavits showing that either on June 22d at about ten o'clock in the forenoon or a little later, or on June 23d at about eleven o'clock in the forenoon, a man with a burlap sack or a bundle was seen going toward or from the Au Gres river where the boy's body was found. The boy was last seen alive about 4:00 P.M., June 22d. The presence of some unknown person in the vicinity where the body was found, at about eleven o'clock in the forenoon on June 22d or at about the same hour of the day on June 23d, carrying a burlap sack, does not weigh heavily as against defendant's voluntary confessions. There was testimony that the deep hole in the river was found to harbor large turtles, when drained in searching for the body. It might as plausibly be argued that the burlap sack carrier was taking turtles for food or the market, as to conclude that he was thus rather openly carrying a dead body in the daytime where three witnesses saw him. While claiming this unrecognized man was furtive in his movements, these affiants failed to explain their delay in not disclosing their knowledge for more than four years. These newly discovered witnesses were either relatives or friends of the defendant, interested in her release, yet it is claimed their testimony was not discovered until four years after the crime was committed. The circuit judge was not guilty of any abuse of discretion in denying a new trial on this asserted ground.
3. Defendant's further showing of newly discovered evidence consisted of an affidavit stating that Nellie Brooks (the people's main witness) had said that she supplied the defendant with money, intoxicating liquors and cigarettes before the confession, that she could get the defendant a lot of money for her story if sold, that the confession was obtained by trickery. The record does not sustain the claim that cigarettes, liquor or money had any bearing on the truth or claimed falsity of the confession. Nellie Brooks was the people's witness who started the chain of events resulting in the confession. As to the conduct of Nellie Brooks in aiding in obtaining the confession, the facts are claimed to be as follows: Nellie Brooks was a neighbor of defendant, for whom defendant and her husband occasionally worked. She testified that when it was reported that a certain man had died after confessing the murder, the defendant asked her (Mrs. Brooks) After that, the defendant frequently mentioned the Kenyon murder case to Mrs. Brooks, said she could write a story about it, that she...
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