People v. Mullane, 210.

• Decision Date: 08 December 1931
• Docket Number: No. 210.,210.
• Parties: PEOPLE v. MULLANE et al.
• Court: Michigan Supreme Court

256 Mich. 54

239 N.W. 282

PEOPLE

v.MULLANE et al.

No. 210.

Supreme Court of Michigan.

Dec. 8, 1931.

Appeal from Recorder's Court of Detroit; John A. Boyne, Judge.

Jerry Mullane and others were convicted of kidnapping, and they appeal.

Affirmed.

Argued before BUTZEL, C. J., and WIEST, CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ.George K. Williams, of Detroit, for appellants Harry Hallisey and Roy Cornelius.

Louis W. McClear, of Detroit, for appellant Jerry Mullane.

Paul W. Voorhies, Atty. Gen., and Harry S. Toy, Pros. Atty., and Edmund E. Shepherd, Asst. Pros. Atty., both of Detroit, for the People.

SHARPE, J.

The defendants, except Ross, seek review of their conviction and sentence on a charge of kidnapping one Charles Mattler. The errors will be considered in the order discussed by defendants' counsel in their brief.

1. After arraignment, and before trial, counsel for Mullane moved for a separate trial for his client, for the reason that he ‘has a good and meritorious defense and believes that his said defense would be prejudiced if he is compelled to go to trial with the other defendants.’

It is claimed that similar motions were made on behalf of the other defendants, but they do not appear in the files. No affidavit, stating facts on which the court might determine whether the defenses relied on were inconsistent with each other and a joint trial might result in prejudice to one or more of them, was presented. Under the provisions of our Code of Criminal Procedure (Comp. Laws 1929, § 17298), the question of severance rests in the discretion of the court, and it was not abused in the denial of the motion.

2. The record discloses that, after a panel of fourteen jurors had been ‘finally accepted by counsel for all parties, upon inquiry by the court it then developed that Juror No. 2 and Juror No. 9 had recently served on a condemnation jury.’ After a conference in the judge's chambers, he announced that he would ‘be liveral in any reasonable objection to any juror which will be taken as a challenge for cause,’ but would allow no more peremptory challenges. It appears that the defendants had theretofore exhausted all such challenges. Quoting from the record: ‘(Thereupon, two jurors were called in lieu of the two excused, and after examination by all counsel, the jury as completed was accepted and sworn.)’

The examination of these jurors does not appear in the record, nor do counsel claim that they were not in every way qualified to sit.

The defendants had the right to a trial ‘by an impartial jury.’ Const. art. 2, § 19. They had the right to exercise challenges, either for cause or peremptory, at any time before the jury were sworn to try the case. It appears that two entire days were consumed in the selection of this jury. While no name should appear upon the panel except that of a person qualified to sit, it is a well-known fact that, especially in the large cities, such names will occasionally be placed thereon. Counsel engaged in the trial, either on behalf of the prosecution or defense, when permitted to examine the jury as they here were, may inquire of each juror as to his or her qualification to sit as such. Fourteen persons were impaneled at the time attention was called to the disqualification of the two jurors. The defense had exercised all of the peremptory challenges to which they were entitled. Instead of the court's excusing them of his own motion, the prosecuting attorney might very properly have challenged them for cause, and, had he done so, the challenges would have been sustained. In what way can it then be said that the defendants were deprived of the right of further peremptory challenge by the course pursued? If defendants' counsel chose to exercise all of their peremptory challenges before the jury were ordered to arise and be sworn, they took the change that after they had done so it might be discovered that a person not qualified to sit was among the number in the jury box and that he or she might be removed therefrom by order of the court.

3. During the cross-examination of one of the people's witnesses, he was asked if the officers did not tell him that ‘they were going to send you back to Ohio on the Max Plummer case,’ whereupon the assistant prosecuting attorney objected, and, in stating his objection, said, ‘The question asked by Mr. McClear has been asked for solely one purpose, to prejudice this witness in the eyes of the jury,’ to which counsel took objection. The court permitted the question to be answered, but did not caution the jury to disregard the statement made. In our opinion his omission to do so does not constitute reversible error. The remark had better been left unsaid, but jurors are presumed to be intelligent and to have an opinion themselves as to counsel's reason for asking a question.

4. The defendants did not...