People v. Prevost

• Decision Date: 20 July 1922
• Docket Number: No. 181.,181.
• Citation: 189 N.W. 92,219 Mich. 233
• Parties: PEOPLE v. PREVOST.
• Court: Michigan Supreme Court

219 Mich. 233

189 N.W. 92

PEOPLE

v.PREVOST.

No. 181.

Supreme Court of Michigan.

July 20, 1922.

Error to Circuit Court, for Macomb County; Fred S. Lamb, Judge.

Lloyd Prevost was convicted of murder, and he brings error. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Clark and Moore, JJ., dissenting.Lungerhausen, Weeks & Lungerhausen, of Mt. Clemens, William T. Hosner, of Romeo, and James McNamara, of Detroit, for appellant.

Lynn M. Johnston, Pros. Atty., of Mt. Clemens (Alexander Groesbeck, of Detroit, and Bert V. Nunneley, of Mt. Clemens, of counsel), for the People.

BIRD, J.

Respondent was tried and convicted in the Macomb circuit court for the murder of J. Stanley Brown. The testimony discloses that defendant and J. Stanley Brown were both residents of Mt. Clemens, and both were about 25 years of age. Brown was well to do, and had no employment. Defendant was poor, and was employed making deliveries for the Adams Express Company. Brown's wife and defendant were first cousins. Defendant and Brown were much in each other's company. They were frequently seen about town together. They occasionally motored together in Brown's car. They often dined together, and for several weeks before the murder they occupied the same room at the Edison Hotel. They appeared to be the best of friends. Brown was found dead in his sedan on the morning of December 24, 1919, about three miles west of the city of Mt. Clemens. Four bullets had entered his head from the rear. Following this considerable time was consumed by the police authorities in making investigations. Finally a John Doe proceeding was instituted and considerable testimony taken. This proceeding developed facts which pointed to defendant as the guilty party. He was arrested, and on examination was held for trial, and later convicted.

(1) Serious complaint is made of the use which the prosecutor made of the testimony taken at the John Doe proceeding in the examination of his witnesses. The testimony at the John Doe proceeding was taken stenographically, and the prosecutor was in possession of a copy thereof. This testimony was not used as substantive evidence, but was used by the prosecutor to refresh the recollection of hostile or unwilling witnesses. Several of the people's witnesses, including members of defendant's family, also friends of respondent, had grown very forgetful since they testified in the John Doe proceeding, and the prosecutor used the John Doe testimony to refresh their collection. The use made of it was competent for this purpose. People v. O'Neill, 107 Mich. 556, 65 N. W. 540;People v. Palmer, 105 Mich. 568, 63 N. W. 656. See 28 R. C. L. 642.

(2) Another question is raised in this connection. Defendant's counsel applied for permission to see and have the use of the testimony during the examination of the witnesses. The trial court refused to grant the permission during the examination of the witnesses, but later on an order was made granting defendant's counsel the right to the possession of the same. The prosecutor offered to permit defendant's counsel to look over his shoulder and inspect the testimony while he was examining the witnesses, but they refused to avail themselves of this offer. Act 196 of the Laws of 1917, which authorizes the John Doe proceedings, does not provide that the testimony shall be taken stenographically, nor does it provide that minutes of the testimony shall be taken or filed. The John Doe proceeding was in no sense an examination of defendant, nor was it a trial. Under these circumstances we do not know under what theory defendant could, as a matter of right, demand inspection of the testimony. The case of State v. Rhoads 81 Ohio St. 397, 91 N. E. 186,27 L. R. A. (N. S.) 558,18 Ann. Cas. 415, denies defendant was entitled to inspect it, but we need not further discuss this question, as the prosecutor's offer to permit them to examine the testimony over his shoulder, and the court's subsequent order that it be turned over to them, renders it unnecessary. As long as counsel had the benefit of the testimony before the trial closed, they are in no position to complain of the court's ruling that they should not have it at a particular time.

(3) It appeared during the taking of the testimony of the prosecution on the trial that defendant stood on his privilege, and did not testify in the John Doe proceeding, nor on his examination, after the arrest, nor at the inquest. Counsel claim this was error under Compiled Laws 1915, § 12552. The material part of this statute is:

‘Provided, however, that a defendant in any criminal case or proceeding shall only at his own request, be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.’

Much time has been devoted to this question and many cases cited, but we are not impressed with the importance of the question, because of the fact that defendant took the stand and testified on the trial in his own behalf. When he did this he waived any benefit which he may have been entitled to under the statute, and was then subject to precisely the same cross-examination as any other witness. People v. Howard, 73 Mich. 10, 40 N. W. 789;People v. Gray, 135 Mich. 542, 98 N. W. 261;People v. Parmelee, 112 Mich. 296, 70 N. W. 577;People v. Ecarius, 124 Mich. 623, 83 N. W. 628;People v. Higgins, 127 Mich. 291, 86 N. W. 812;People v. Bryan, 170 Mich. 683, 136 N. W. 1120;People v. Danenberg, 176 Mich. 339, 142 N. W. 347;People v. Kimbrough, 193 Mich. 330, 159 N. W. 533.

Upon this question Underhill on Criminal Evidence, § 68, says:

‘The exemption from unfavorable comment is applicable only when the accused wholly refrains from testifying. If he voluntarily goes upon the stand, he waives this exemption, and the state may comment upon his testimony as fully as upon that of any other witness, and may call attention to his silence and demeanor while there, or at the preliminary examination, to his refusal to answer incriminating questions; or to deny prominent and damaging facts of which he must have some personal knowledge’ citing Russell v. State, 77 Neb. 519, 110 N. W. 380,15 Ann. Cas. 222;Comstock v. State, 14 Neb. 205, 15 N. W. 355;Solander v. People, 2 Colo. 48;State v. Anderson, 89 Mo. 312, 1 S. W. 135;Cotton v. State, 87 Ala. 103, 6 South. 372;State v. Glave, 51 Kan. 330, 33 Pac. 8;Lee v. State, 56 Ark. 4, 19 S. W. 16;State v. Walker, 98 Mo. 95, 9 S. W. 646,11 S. W. 1133;State v. Tatman, 59 Iowa, 471, 13 N. W. 632;State v. Ober, 52 N. H. 459, 13 Am. Rep. 88;Brashears v. State, 58 Md. 563;Toops v. State, 92 Ind. 13;Stover v. People, 56 N. Y. 315;Commonwealth v. Mullen, 97 Mass. 545;Commonwealth v. McConnell, 162 Mass. 499, 39 N. E. 107;Heldt v. State, 20 Neb. 492, 30 N. W. 626,57 Am. Rep. 835;State v. Ulsemer, 24 Wash. 657, 64 Pac. 800;Taylor v. Commonwealth, 34 S. W. 227, 17 Ky. Law Rep. 1214.

In the case last cited it was said:

‘It is also objected that appellant was asked why he did not testify upon the examining trial, and it is claimed that this was in violation of section 223 of the Criminal Code, providing that a defendant's failure to testify ‘shall not be commented upon or be allowed to create any presumption against him.’ We think this provision is restricted to the trial and tribunal in which the failure to testify occurs, and that when he takes the stand as a witness he may be subjected to cross-examination touching his credibility as any other witness.'

Although there are some cases in Texas and Mississippi holding otherwise, we think this is a reasonable construction of the statute and the use to be made of it. The statute was passed for those who do not care to become witnesses in their own behalf, and not for those who do. When a defendant testifies in his own behalf this statute has no application; it is the same as though the statute had never been passed. The idea behind the statute was to prevent a presumption of guilt being created by reason of the fact that defendant did not testify. If there were any such presumption in the minds of the jurors in this case before defendant offered himself as a witness, the moment he did so the presumption would at once be dissipated, and the fact that he had refused to give testimony on the preliminary examination would be of no consequence. To say to the prosecutor in one breath that, when defendant takes the stand, he may cross-examine him the same as any other witness, that he may cross-examine him with reference to every conceivable material thing, and then in the next breath say to him if he asks the respondent whether he was a witness at the preliminary hearing it is a violation of the statute, and reversible error, is, to say the least, not very consistent. We are in accord with the construction suggested by Taylor v. Commonwealth, supra, and therefore conclude that the trial court was in no error when he instructed the jury that defendant had, by becoming a witness, waived the benefit of the statute.

(4) Complaint is made that the prosecutor was permitted to develop on the trial the fact that Mrs. Brown, the wife of deceased, claimed her constitutional privilege and refused to testify at the John Doe proceeding. This objection is based on the fact that Mrs. Brown was, according to the theory of the prosecution, the motive for the murder. Upon the cross-examination of Dove Prevost, a brother of defendant, he was asked:

‘Q. At the time they were sworn, did you see Mr. John Lungerhausen and Mr. Weeks and hear them state and instruct your brother, Lloyd Prevost, not to make any answers to any questions?

‘Mr. McNamara: The same objection, your honor. * * *

‘Q. You heard them tell him not to answer any questions, did you not‘ A. Yes; and I also heard Mr. Johns and Mr. Van Duyke tell Mrs. Brown not to.

‘Q. To answer no questions,...