People v. Neal

• Decision Date: 05 September 1939
• Docket Number: No. 119.,119.
• Citation: 290 Mich. 123,287 N.W. 403
• Parties: PEOPLE v. NEAL.
• Court: Michigan Supreme Court

290 Mich. 123

287 N.W. 403

PEOPLE

v.NEAL.

No. 119.

Supreme Court of Michigan.

Sept. 5, 1939.

Edgar Neal was convicted of felonious assault, and he appeals.

Reversed and new trial granted. Appeal from Recorder's Court of Detroit; Edward J. Jeffries, Judge.

Argued before the Entire Bench.

N. George Bashara, of Detroit, for appellant.

Thomas Read, Atty. Gen., of Michigan, and Duncan C. McCrea, Pros. Atty., for Wayne County, and William L. Brunner and Allen J. Asam, Asst. Pros. Attys., all of Detroit, for Wayne County, for the People.

WIEST, Justice.

Charged with assault upon his wife, with intent to kill and murder, defendant, upon trial by jury, was convicted of felonious assault. Defendant, for some years, was a member of the Detroit police department, starting as a patrolman and later promoted to detective, police bureau of censors. He resigned from the police department in 1937. He married in March, 1936, and there is one child. His wife was a former chorus girl and dancer. After he resigned from the police force he went to New York City for a time. The morning of July 27, 1938, he returned to Detroit and, upon being informed by his wife that she wanted a divorce, he deliberately started out to get drunk, claims he succeeded and wakened in the prisoner's ward in Receiving Hospital, with a long cut on his scalp.

The evening of July 27, 1938, his wife was engaged in singing at a restaurant and, the prosecution claims, that in the course of the evening, defendant came there and, while having a talk with his wife shortly after midnight, slapped her and, upon her screaming and running away from him, he pulled out his revolver, pointed it at his wife but was seized by others and in the scuffle two shots were fired.

Defendant prosecutes review by appeal.

In the motion for a new trial it was claimed that the prosecutor failed to endorse a res gestae witness. By countershowing such a witness was not known to the prosecution. In the motion for new trial defendant claimed newly discovered evidence but it appears that it was alleged contradictory statements made by witnesses at the trial.

The trial commenced in the morning, probably at the opening of court; the jury was impaneled, proofs in behalf of the prosecution taken, defendant examined as a witness in his own behalf and, near the hour of the noon recess, counsel for defendant announced:

‘Your honor, that constitutes the defense with the exception of a couple of character witnesses we had coming in here at two o'clock. I didn't know what the court wanted to do. We will be all finished with that, and it will be very brief testimony.

‘The Court: Have you any more testimony now?

‘Mr. Fitzgerald: No, no more now.

‘The Court: Do you rest?

‘Mr. Fitzgerald: Well, we will rest after this character testimony.

‘The Court: Well, they should be here.

‘Mr. Fitzgerald: If the court please, I didn't know what schedule we were working on.

‘The Court: You knew what court you were going to be in, didn't you?

‘Mr. Fitzgerald: That is true, your honor, and I warned them of that because I knew from experience--

‘The Court: I am glad you knew something about it.

‘Mr. Fitzgerald: But Mrs. Potter was coming down and a Mrs. Goodwin. They are housewives and I think one is quite elderly. It isn't the easiest thing in the world to maneuver around with them. I had no idea, as a matter of fact, we were going to get through with this case as fast as we did. Of course, with the co-operation of counsel, the court had pushed it right along.

‘The Court: Well, I am ready to go. I thought we would run here until about two o'clock.

‘Mr. Fitzgerald: I can have these witnesses the first thing in the morning.

‘The Court: I would like to have you make your arguments this afternoon.

‘Mr. Fitzgerald: I see what you mean. I don't know what to do.

‘The Court: You have Mrs. Potter?

‘Mr. Fitzgerald: Mrs. Potter, Mrs. Ruttledge and another woman.

‘The Court: To testify to this man's good character?

‘Mr. Fitzgerald: That is right.

‘The Court: You will admit that, won't you?

‘Mr. Asam: That he is of good character-that he was?

‘The Court: Of course, the law presumes the man is regular.

‘Mr. Fitzgerald: The character testimony would be in regard to general reputation for truth and veracity and honesty and integrity and for being a peaceful and law-abiding citizen.

‘Mr. Asam: So far as I know, that is true.

‘The Court: That is what the law presumes.

‘Mr. Asam: The law presumes that.

‘Mr. Fitzgerald: The only thing we want is the benefit of character testimony in the charge. That is my only reason.

‘The Court: I will give you--

‘Mr. Fitzgerald: That will help the situation.

‘The Court: I will give you all the comfort on that you are entitled to. Well, how much time do you want to argue?’

The record shows the closing arguments were then made whereupon an adjournment was taken until 9:30 o'clock the next morning, at which time the court instructed the jury, therein stating:

‘There was some question here yesterday with reference to character witnesses. Now, the law presumes that everybody is regular. You know the Anglo-Saxon theory and outlook of mankind is that everybody is decent and honest, and he who makes a charge against another must prove it. That gives us a tremendous advantage over some of the gentlemen across the water because we have a decent and fair outlook upon mankind and that gives us a much better and greater grasp of the co-operative efforts of mankind. We do not go around with chips on our shoulders and we do not go around with the suspicion that everybody is bad. We have in this country what is called under our law the presumption of innocence...