People v. Palmer

• Decision Date: 04 June 1895
• Citation: 63 N.W. 656,105 Mich. 568
• Court: Michigan Supreme Court
• Parties: PEOPLE v. PALMER.

63 N.W. 656

105 Mich. 568

PEOPLE v. PALMER.

Supreme Court of Michigan

June 4, 1895

Error to circuit court, Saginaw county; Robert B. McKnight, Judge.

William Palmer was convicted of murder in the second degree, and brings error. Affirmed.

John E. Nolan (George W. Weadock, of counsel), for appellant.

Fred A Maynard, Atty. Gen., and E. A. Snow, Pros. Atty. (F. E Emenck, of counsel), for the People.

GRANT J.

For a statement of the issue in this case, we refer to 96 Mich 580, 55 N.W. 994, where a brief statement of the case will be found. On the second trial the respondent was again convicted of murder in the second degree.

1. A witness by the name of Addett was also a witness for the people on the former trial. Upon the redirect examination of the witness, counsel for the people, for the sole purpose of refreshing the witness' recollection, called his attention to his testimony upon the former trial. This was permitted under objection and exception, and is now alleged as error. This practice is too thoroughly established to now be doubted. Beaubien v. Cicotte, 12 Mich. 459; McCreery v. Green, 38 Mich. 186, and authorities there cited; Battishill v. Humphreys, 64 Mich. 518, 38 N.W. 581. Respondent's counsel rely on Bashford v. People, 24 Mich. 246. That opinion, we think, recognizes the rule, but was based upon the fact that no occasion was shown for refreshing the witness' memory. In this case there was.

2. Error is next alleged upon the misconduct of the prosecuting attorney interrogating the defendant's witnesses upon the cross-examination. All the questions which were incompetent were promptly overruled by the circuit judge. One of the questions was as follows, asked of the defendant himself: "Then I understand you, if you are walking along with a gun, and you incidentally saw a revolver discharged in your direction, that you would take your gun, and cock it, and fire right into the crowd?" One Ruby, a witness for the defendant, testified that the deceased, Albert Palmer, had tried to hire the witness to kill William, the respondent. The story was such as to render a very rigid cross-examination of the witness' life and character competent. He admitted that he married his wife from a house of prostitution, and the question was then asked, "Was she a prostitute?" One other question of a similar character was asked, and both excluded. There was nothing to show that the questions were not asked in good faith, and we do not think they were of such a character as to justify the holding that they prejudiced the jury.

3. It is alleged as error that the court refused to give the following specific request on behalf of the respondent: "In determining which of the brothers was the aggressor, you may also take into consideration the testimony tending to show that, on the date of the tragedy, Albert was under the influence of liquor, and that, when under the influence of liquor, he was ugly and nervous and of quick temper, and that the defendant, up to the instant of the shooting, was in his usual frame of mind, pleasant and good-natured." The charge is so full and complete, covering every possible ground of defense, that we do not think it was error to refuse this request. Besides, this request was rather in the nature of an argument based upon a portion of the testimony in the case. Undoubtedly, this question was fully argued by counsel to the jury. Such argumentative requests are of doubtful propriety. People v. Crawford, 48 Mich. 498, 12 N.W. 673. To view preceding link please click here But, aside from this, the court specifically called the jury's attention to the acts, conduct, and threats of the deceased, the facts and circumstances surrounding the killing, and their relations prior thereto, and instructed the jury that they were all for their consideration.

4. In the opening part of his charge, the judge defined the different degrees of murder and also manslaughter. He said that, where a crime was divided into degrees, the jury may acquit of the principal charge, and find the prisoner guilty of the lesser offense; and that, when one is so charged, the jury should first consider the matter of the higher crime, and then go through the different degrees. After some further explanations, he withdrew from their consideration the subject of murder in the first degree, since he had been acquitted of that charge in a former trial. It is insisted that the charge is misleading and prejudicial because he first defined murder in the first degree, and instructed them that they should commence with the higher crime. A juror who could be thus misled or prejudiced would not possess intelligence sufficient to justify his sitting as a juror in any case.

5. It is next argued that the court erred in giving the following request: "Now, if, after he entered the saloon, he became aware that his brother Albert was there, and that he then formed the intent to take his brother Albert's life, taking into account whatever may have been in his mind as to their past relations, their quarrels, or anything that he may have heard about Albert having a pistol, and if he became aware that Albert was in the back part of the saloon, surrounded by his friends, if he then, even though but a moment before he fired the fatal shot, formed in his mind the purpose of taking his brother's life, and pursuant to that purpose he shot and killed him, that would constitute the crime of murder." The precise point urged is that there was no evidence to support such a theory, and that neither the prosecution nor the defense conducted the trial with reference to it. We cannot tell what the argument was to the jury. If there is any testimony upon which to base the charge of the court, the charge must be sustained. The respondent claimed that he had no murderous intent at any time. There was evidence that, when he entered the saloon, he appeared in his usual manner, and there was evidence that, when he raised the gun, his countenance changed. Whether this was because he saw his brother, or saw the pistol pointed at him, and whether it was necessary for him then to shoot in self-defense, are all questions for the jury, and made competent the charge complained of, which was given in connection with instructions covering the respondent's theories. The entire instructions covering this point are found in the margin. ^[1]

6. After the first difficulty in the saloon between the two brothers, and about an hour before the tragedy Albert went out of the saloon, and had a conversation with one Bruce and one Poquette. The conversation related to the trouble in the saloon. The respondent stood on the sidewalk, 150 to 200 feet from him. Bruce testified that Albert said: "I won't be beat and bruised up by that bully. He is too big for me. I am not able to fight him, and, furthermore, I don't have to. I got something to aid me;" showing a box of cartridges. Albert then said to Poquette, in Bruce's presence: "What did you people up in that saloon mean by letting that man abuse me? He is too big for me. I don't want to fight him, and don't intend to. I have got something to protect myself with;" taking a revolver out of his pocket. Poquette replied: "I haven't anything to do with your troubles, Al. Didn't I take him to Bay City yesterday to take him away from you?" Complaint is made only of the admission of the statement of Poquette, who was not produced as a witness, although upon the trial the objection was to the entire conversation. Certainly, the statements of the deceased were competent, and were favorable to the respondent, in that they showed a hostile feeling on the part of the deceased and an express threat. It was not only right but the duty of the prosecution to place this conversation before the jury in so far as it showed the state of mind and disposition towards the respondent. The objection to its admission was raised when the testimony was offered. The judge, in admitting it, stated that he received it as a part of the res gestae, and confined it to such conversation as involved the relations of the brothers on the day of the homicide. This ruling is sustained by the following authorities: People v. Potter, 5 Mich. 5; Brown v. People, 17 Mich. 433; Patten v. People, 18 Mich. 327; 1 Greenl. Ev. 108. Greenleaf says: "Upon an inquiry as to the state of mind, sentiments, or disposition of a person at any particular period, his declarations and conversations are admissible." The admission of the statement of Poquette to the deceased is more doubtful. The general rule is, however, that the entire conversation is admissible. It all related to the trouble existing between the two brothers. They had just had a quarrel in a saloon at which Poquette was present. It is not the rule to include that portion of a conversation which is favorable to a party, and exclude that which may be against him. The entire conversation is admissible, and a jury may well be trusted with its consideration. We think no error was committed in admitting it.

7. Ten days after the conviction, the respondent was brought into court, and sentenced. The record does not show that the respondent was asked what he had to say why judgment should not be pronounced upon him, and for this reason it is urged that the judgment must be reversed, and a new trial ordered. The respondent's counsel was present, and made no objection to the proceeding. There had been ample time to move for a new trial or an arrest of judgment. This was never regarded as essential except in capital cases. 4 Bl. Comm 375; Jeffries v. Com., 12 Allen, 145; West v. State, 22 N. J. Law, 212; McCue v. Com., 78 Pa. St. 185. Whatever good purpose this practice may have served in England when parties charged with crime were not...