People v. Podolski

• Decision Date: 06 March 1952
• Docket Number: No. 94,94
• Citation: 52 N.W.2d 201,332 Mich. 508
• Parties: PEOPLE v. PODOLSKI
• Court: Michigan Supreme Court

Page 201

52 N.W.2d 201

332 Mich. 508

PEOPLE v. PODOLSKI.

No. 94.

Supreme Court of Michigan

March 6, 1952.

Helen Theut Bevens, Detroit, for defendant and appellant.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Solicitor Gen., Lansing, Gerald K. O'Brien, Prosecuting Atty. for Wayne County, Ralph Garber, Chief Asst. Prosecuting Atty., Garfield A. Nichols, Asst. Prosecuting Atty., Chief Appellate Division and George W. Miller, Asst. Prosecuting Atty., Appellate Division, all of Detroit, for the People.

Before the Entire Bench, except BUTZEL, J.

REID, Justice.

Upon leave granted, defendant appealed, December 11, 1950, from a conviction and sentence, September 4, 1925, for murder of the first degree committed in the robbery of a bank at the corner of Chene and Harper in the city of Detroit. The offence is charged as committed on June 13, 1925.

Anthony Machus and Walter Filipowski were charged as accomplices with Podolski in an information filed June 22, 1925, on which day defendants Machus and Filipowski were arraigned, and each pleaded guilty to murder of the first degree committed in said robbery and each was given a life sentence on June 22, 1925.

Machus was granted a new trial in May, 1948, and on the new trial was acquitted May 26, 1949. Filipowski, also granted a new trial, was permitted to plead guilty to second degree murder.

The trial of defendant Podolski before court and jury began on August 28, 1925, and ended with a verdict of guilty on September 2, 1925.

Defendant claims he was not identified by witnesses on the trial sufficiently to justify the jury in finding beyond a reasonable doubt that he was present at and a participant in the robbery. However, one police officer and six other witnesses identified defendant and testified that he was present as a participant in the robbery. The witnesses do not in all particulars agree as to height of person and color of clothing but each of the seven witnesses had excellent opportunities to observe defendant's features.

The testimony amply sustains the verdict as far as identification of defendant is concerned.

Without merit is defendant's claim that the trial judge who denied defendant Podolski's last motion for a new trial, based his denial on the length of time that elapsed after sentence and before motion for a new trial. The prosecution explains the judge's reference to lapse of time in the following manner: 'The comments of the successor trial judge in his opinion and order denying delayed motion for new trial in reference to the failure of Anthony Machus to attempt a more timely exoneration of the defendant (the affidavit of Anthony Machus referred to was attached to the motion for new trial) was based upon the state of the record at the time that the court considered the motion, June 4, 1950. The transcript of testimony now available to the Supreme Court in the record on appeal was not available to the trial court when he considered the motion for new trial. The trial court was not aware that the witness Machus had given a statement to the prosecuting attorney on June 13, 1925, the day of the robbery, wherein he named one John Devine as his accomplice, and, eleven days later on June 24, 1925, Machus testified at the preliminary examination that defendant John Podolski did all of those acts which he had attributed to John Devine in his statement to the prosecutor, and that on the original trial hereof, the said Anthony Machus again changed his story and said that John Podolski was not present at the time of the robbery. Therefore, the court's statement: 'He (Machus) does not explain why he waited 23 years to exonerate Podolski' appears reasonable in the light of these facts. It is likewise most significant that Machus was granted a new trial by the Supreme Court on May 27, 1948; was found not guilty on May 26, 1949 * * * and then executed his affidavit exonerating John Podolski on October 14, 1949 after he had been freed.'

A careful reading of the trial court's opinion clearly shows a denial on the merits of the motion. The judge included lapse of time as part of the merits only as far as he commented on the length of time before witness Machus made considerable changes in certain details of his testimony.

Defendant further claims he was denied due process because of a ruling by the trial court precluding an answer on the part of his co-defendant Machus as a witness whether his (Machus') testimony was free and voluntary on the preliminary examination in which witness Machus gave testimony that defendant Podolski was a participant in the robbery. On the trial, witness Machus testified that Podolski was not a participant in the robbery, and was asked whether he was induced by fear in giving different testimony on the preliminary examination. The witness Machus had not testified to any fact or circumstance that would show how fear of the officers had caused him on the preliminary examination to implicate Podolski. He had made no pretense that the officers conveyed to him (the witness) any desire that he falsely accuse Podolski.

To permit the witness to assert that his previous testimony in court was not free and voluntary, without having given any testimony of acts or events that would support such assertion on involuntariness, would be to usurp the power of the court (and in doubtful cases the power of the jury) whose duty it is to determine the fact of voluntariness of such implication.

Our attention has not been directed to any case in which a ruling has been made on the precise point in issue, where, as distinguished from a confession, it is claimed that a witness through duress gave false testimony implicating a third person, but by way of analogy only, we have in mind the following: We decided in People v. Barker, 60 Mich. 277, syl. 10, 27 N.W. 539: 'In a case free from doubt, it is the province of the court to determine whether a confession was voluntarily made or not before admitting or rejecting the same as evidence; but in case of conflict of testimony, or room for doubt, the court should submit the question to the jury, with instructions that if they are satisfied that inducements were used they shall disregard and reject the confession.'

In that case, we said 60 Mich. on page 296, 27 N.W. on page 546: 'For all that appeared to the court at the time it [the confession] was offered, it was prima facie competent. The respondents' counsel contended that it was incompetent by reason of certain extrinsic facts. It was for the respondents to establish those facts, and for the circuit judge to ascertain before admitting the evidence.'

Also, we said in People v. Cavanaugh, 246 Mich. 680, at page 686, 225 N.W. 501, at page 503: 'The police had testified that the confession was voluntary. Defendant had an undoubted right to lay before the jury his full claim of what the police said to him, and it was for the jury to say whether, under all the circumstances, the confession was voluntary.'

In the instant case, the court and jury were entitled to be informed of the basic facts before the witness should be permitted to state the conclusion that fear controlled his previous testimony. That is an important if not the only way by which the jury could determine the truthfulness of such testimony. There was no failure of due process in the ruling complained of.

The principal ground relied on for reversal seems to be that the fatal bullet came from the revolver of a fellow officer and was not fired by any one of the robbers. On this phase of the appeal, one statement of the prosecution's theory may be made as follows: The defendant began the holdup by holding a gun at the teller, witness Wasnik, directing him to raise his hands. The robbers proceeded with the robbery of the bank, and were about to escape when the police officers arrived; in the ensuing gun battle, officer...