People v. Payne

• Decision Date: 30 September 1902
• Citation: 131 Mich. 474,91 N.W. 739
• Court: Michigan Supreme Court
• Parties: PEOPLE v. PAYNE.

91 N.W. 739

131 Mich. 474

PEOPLE v. PAYNE.

Supreme Court of Michigan

September 30, 1902

Error to circuit court, Muskegon county; Fred J. Russell, Judge.

Charles Payne was convicted of seduction, and brings error. Reversed.

Dan T. Chamberlain, for appellant.

Charles B. Cross, Pros, Atty., and George S. Lovelace, Asst. Pros. Atty., for the People.

MOORE J.

The respondent was convicted of the crime of seduction. He has brought the case here by writ of error. The errors assigned may be grouped: First, errors in the admission and rejection of testimony; second, the language, conduct, and instructions of the trial judge; third, the language of the prosecuting attorney upon the trial and in his address to the jury. We have considered all the assignments of error, but will discuss only part of them. The prosecution were allowed to show that prosecutrix's mother was insane, and her father did not care for her after she was 14 years of age. This testimony might well have been omitted, but, as it was preliminary simply, we should not be inclined to reverse the case if there were no other errors in it. The information charged the offense to have been committed October 22d. The testimony showed it was committed September 22d. After this testimony was given, the people were allowed to show acts of intercourse in November and December, and that pregnancy resulted therefrom. This was contrary to the rule laid down in People v. Clark, 33 Mich. 112; Boyce v. People, 55 N.Y. 644. The complaining witness was examined in the court below. In the circuit court she testified the intercourse occurred between 11 and 12 o'clock. On her cross-examination she admitted she testified in the court below that the intercourse occurred about half past 9 o'clock, and that it was not true. She was then asked, 'Then why did you tell it?' The circuit Judge sustained an objection to this question. The proof of the charge made against the respondent depended almost wholly upon the testimony of the complaining witness. The respondent was entitled to whatever benefit might be derived from a proper cross-examination, and we think he was entitled to an answer to this question.

Complaint is made of the attitude of the judge towards respondent's counsel. The record discloses a situation that must have been very unpleasant. There had been repeated rulings in relation to a type of questions. It is difficult to believe counsel did not know how to frame the question so it would be unobjectionable, and it is also apparent he studiously avoided doing so. Under the circumstances we are not inclined to criticise the action of the judge toward counsel about which complaint is made.

Counsel called a witness for the purpose of showing that complaining witness had sustained illicit relations with him, and was not chaste when it is claimed respondent seduced her. Instead of the witness testifying to the illicit relations, he denied they had occurred. Counsel claimed to be surprised, and sought to show that witness had made a different statement to counsel before he was called as a witness. He was not allowed to do this. The authorities are not agreed as to the rule but we think the weight of the authority is that he might examine the witness upon the point to which his attention was directed. Taylor, Ev. (9th Ed.) p. 978; Best, Ev. (1st Am Ed.) p. 1080; Greenl. Ev. (16th Ed.) p. 565; Webber v. Jackson, 79 Mich. 175, 44 N.W 591, 19 Am. St. Rep. 165. Counsel ought to have been allowed to show by the witness, if he could, that the witness had made a different statement; not as substantive proof, but as explaining why he had called him, so that the jury should not be prejudiced by his having done so.

The record discloses intense feeling was shown by the attorneys upon both sides. The argument of counsel for respondent does not appear. That of the assistant prosecuting attorney does. In the course of his argument he used the following language 'It has been my good fortune to participate in the trial of many causes, to be in the court room and see many causes tried, but I want to tell you that never in my experience have I sat in the court room and seen the brutal, cowardly, and contemptible defense that has been made in this case. Mr. Chamberlain: I take an exception to that statement. Does the court think that is proper? The Court: I don't know whether it is or not. Mr. Lovelace: And I will prove it to you, gentlemen of the jury. * * * I say that because a man is hired to defend a man charged with crime he has a right to use all the legal means to acquit his client; he has no right to stand here in the court room and dispute the decisions of the court; he has no right to stand here in the court room, and without any foundation whatever, knowingly and willfully stand before a jury, and state what he knows is not so. Mr. Chamberlain: I will take an exception to that statement. Mr. Lovelace: He has no right to rake the purlieus of hell for evidence against a woman, and, when he finds that he cannot do it, to stand before you and tell that the witnesses for whose credibility he vouches are perjurers. That may be the ethics of the legal profession in some states; it is not in the state of Michigan. * * * Why, it is only at this term of court that some of you members sitting upon this jury sent a man to state's prison because he had broken into a store and stolen a couple of pairs of pants, and yet shall this man, who has broken into a woman's life, and filched from it all that makes her life worth living, and cast her out to...