People v. Nutter

• Decision Date: 25 June 1931
• Docket Number: No. 130.,130.
• Citation: 237 N.W. 384,255 Mich. 207
• Parties: PEOPLE v. NUTTER.
• Court: Michigan Supreme Court

255 Mich. 207

237 N.W. 384

PEOPLE

v.NUTTER.

No. 130.

Supreme Court of Michigan.

June 25, 1931.

Appeal from Circuit Court, Wexford County; Fred S. Lamb, Judge.

James Nutter was convicted of possession and transportation of intoxicating liquor, and he appeals.

Reversed, and a new trial granted.

Argued before the Entire Bench.

F. E. Wetmore, of Hart, for appellant.

William H. Yearnd, Pros. Atty., of Cadillac, for the People.

WIEST, J.

December 19, 1930, defendant was arrested by an officer, without a warrant, on belief, based upon claimed reliable information, that defendant possessed and was then transporting intoxicating liquor, and, upon search, the officer seized some ‘moonshine whisky.’ Defendant's motion to suppress the evidence so seized was denied before trial, and, upon trial, by jury, defendant was convicted. The record does not enable us to pass upon the motion to suppress. If the showing in support of the arrest and search was information as stale as that disclosed by the only dates mentioned at the trial, it would not have justified a search warrant. People v. Chippewa Circuit Judge, 226 Mich. 326, 197 N. W. 539. The denial of the motion to suppress adjudged the arrest to have been legal and the search proper, and ended such issues. People v. Burt, 236 Mich. 62, 210 N. W. 97;People v. Cech, 236 Mich. 75, 209 N. W. 944.

At the trial, however, the prosecutor, in his opening statement to the jury, said:

‘It will be claimed on the part of the People, and proof will be offered in support of our claim, that for sometime, some considerable time prior to the 19th day of December, Mr. Nutter, had the reputation in the city of Manton——

‘Mr. Wetmore: I object to any statement of that kind, if the court please. We are not trying men on reputations. This man is not charged with keeping a place; he is charged with a specific offense, and I object to the statement being made in the presence of the jury; it is prejudicial to the rights of respondent.

‘The Court: We will take care of that as the testimony comes in. This is simply preliminary. We will get down to what actually took place.’

The prosecutor continued:

‘It is the claim on the part of the people, and proof will be introduced in support of that claim, that for several years prior to the 19th day of December, and for a considerable period prior, that the respondent Mr. Nutter, had the reputation in the community of the city of Manton of being a bootlegger. * * *

‘It is the claim on the part of the people, and we will introduce evidence to support that claim, that during that considerable period prior to December 19, 1930, information was conveyed to James Truman, and to Deputy Sheriff Smith, that the respondent James Nutter was selling intoxicating liquor in and about the vicinity of Manton.

‘Mr. Wetmore: I interpose the same objection to this statement and move it be stricken out. It is prejudicial to the rights of the respondent.

‘The Court: Go ahead; Mr. Yearnd.

‘Mr. Wetmore: Give me an exception.

‘Mr. Yearnd: Information was also conveyed to the officers that the respondent was in the habit of bringing liquor into the city of Manton and disposing of it at public dances.

‘It is the claim of the people, and we will introduce evidence to support that claim, that acting upon that information Deputy Truman, together with Deputy Smith, made arrangements whereby they would watch the highway known as M–42, for the purpose of arresting the respondent, acting upon information which had been conveyed to them which I have indicated.’

At the trial, the prosecution called Mr. Truman, asked the following questions, and, over the objection of counsel for defendant, received the following answers:

‘Q. During the past year immediately preceding December 19, 1930, whether or not you frequently saw the respondent in the City of Manton? A. I have.

‘Q. During that period, witness, I will ask you to state if certain information has been conveyed to you concerning respondent Nutter? A. There was.

‘Q. With particular reference to a violation of the Prohibition Law? A. There was.

‘Mr. Wetmore: I object to that, if the Court please, as incompetent, immaterial and irrelevant and highly prejudicial to the rights of this respondent.

‘The Court: I think I should allow it for the purpose of furnishing a setting for what was actually afterwards done.

‘Mr. Yearnd: That is the only purpose of it.

‘The Court: Not bearing on the question of his guilt or innocence. * * *

‘Q. From whom, Mr. Truman, have you received such information? A. Delos Rosebrook. * * *

‘Q. Just tell us what Delos Rosebrook told you concerning Mr. Nutter. A. He told me Mr. Nutter was selling booze around Manton.

‘Q. What else, if anything, did he tell you? A. ‘Why don't you get him?’ * * *

‘Q. You may state, witness, whether or not you received similar information from other people and if so from whom? A. Sherman Clackler. * * *

‘Q. Just tell the jury what he told you in this regard. A. He told me Jim was selling booze. * * *

‘Q. You may state, witness, whether or not you received any other information from other persons? A. I did.

‘Q. From whom? A. Levi Nutter. * * *

‘Q. What did he tell you? A. He told me he had a brother peddling booze; bottlegging.

‘Q. He told you that? A. Yes, sir.

‘Q. When did he tell you that? A. That was along the last of October or the first of November. * * *

‘Q. You may state, witness, whether or not you obtained additional information concerning the subject matter? A. I did.

‘Q. And from whom? A. Leonard Mills. * * *

‘Q. What did he tell you? A. He told me Jim was bootlegging. * * *

‘Q. When was that information given to you by Mr. Mills? A. This summer.

‘Q. Along this last summer? A. Yes, sir.

‘Q. As to whether or not you received any other information from other people concerning this matter? A. I did.

‘Q. From whom? A. Roy Chapman. * * *

‘Q. What did he tell you? A. He told me he was peddling booze.

‘Q. Who do you mean by ‘he’? A. James Nutter.

‘Q. Just tell the jury what this man told you. A. He told me Jim was peddling booze and wanted to know why I didn't get him. * * *

‘Q. As to whether or not, witness, this information that you have related was in your possession and did you know it on the 19th day of December, 1930? A. I did.’

Then the witness went on and detailed the circumstances of the arrest and search. There was no cross-examination of this or any other witness in regard to this hearsay testimony, and the question of the validity of the arrest or seizure was not raised on the trial in any way by defendant. Defendant testified that he did not have the liquor, and did not know it was in the car. Defendant's son testified that the liquor belonged to him.

It is stated in the brief, in behalf of the people, that:

‘In denying the defendant's motion to suppress the evidence the trial court held that his arrest was lawful and that the evidence procured admissible in evidence. This action of the court precluded the defendant from trying the collateral issue, but the court thereafter permitted the jury to determine under instructions approved in the Kamhout case whether or not in view of all the circumstances the officers had reasonable cause to believe the defendant was in possession of and transporting liquor.

‘This court has not approved this practice, but has explicitly held that if permitted it does not constitute reversible error. People v. Bressler, 223 Mich. 602, 194 N. W. 559;People v. Cardella, 233 Mich. 505, 207 N. W. 141; People v. Dungey, 235 Mich. 146, 209 N. W. 57;People v. Miller, 245 Mich. 115, 222 N. W. 151;People v. Goss, 246 Mich. 524, 224 N. W. 364.

‘Counsel claims this action on the part of the court constituted reversible error, because it prejudiced his client. We submit that the defendant received a decided and distinct advantage on this account in that he received the benefit of having the jury as well as the court pass upon the reasonableness of his arrest. The verdict of the jury not only justified the judgment and good faith of the officers, but it also discredited the defense maintained by Mr. Nutter that the liquor found did not belong to him but to his son.’

No justification for such hearsay...