People v. Price

• Decision Date: 08 February 1889
• Citation: 41 N.W. 853,74 Mich. 37
• Court: Michigan Supreme Court
• Parties: PEOPLE v. PRICE.

41 N.W. 853

74 Mich. 37

PEOPLE v. PRICE.

Supreme Court of Michigan

February 8, 1889

Error to circuit court, Saginaw county; SAGE, Judge.

John M. Harris, Pros. Atty., for the People.

CHAMPLIN J.

On the 6th day of February, 1888, a complaint was made before a justice of the peace, charging that Frank Price did at the township of St. Charles, Saginaw county, Mich., feloniously steal, take, and carry away one yoke of cattle, of the value of $100, of the goods and chattels of one Charles Fisher then and there in the possession of him the said Charles Fisher. An examination was had on the 23d of February, 1888 and he was bound over to the circuit court of Saginaw county for trial. On March 5th following an information was filed against him by the prosecuting attorney, charging that "Frank Price, late of the township of St. Charles, in the county aforesaid, heretofore, to-wit, on the 1st day of November, in the year 1881, at the township of St. Charles in the county of Saginaw aforesaid, one yoke of oxen, of the value of one hundred dollars, of the goods and chattels of one Charles Fisher, in the possession of him the said Charles Fisher, there situate, then and there being found, feloniously did steal, take, and carry away, against the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan." On being arraigned the respondent refused to plead, and the court directed that a plea of "not guilty" be entered. This was on May 8, 1888. On May 14, 1888, the prosecuting attorney, on leave obtained, amended the information by adding thereto a second count, charging respondent with receiving stolen goods, to-wit, one yoke of oxen, of the value of $100, the property of one Charles Fisher, knowing them to have been stolen. Upon being arraigned upon the second count respondent refused to plead, and on motion of his attorney he was granted 10 days' time to file a plea in abatement, and on like motion the cause was continued until the next term of court. On October 4, 1888, the respondent being in court for trial, a jury was impaneled and sworn to try the cause, who sat together and heard the proof and allegations of the parties in part, and then adjourned to the next day. On October 5th, on motion of the prosecuting attorney, it was ordered that, the defendant having failed to plead to the second count added to the information, a plea of not guilty be entered, by order of the court nunc pro tunc, and the trial then proceeded. On the same day, on motion of the prosecuting attorney and on cause shown, it was ordered that he have permission to add to the names indorsed upon the information Dr. Brown, Jerry C. Gallup, Herman Wainwright, and Mahler Bray.

The above facts as to the time the jury were impaneled and the proceedings had on the 4th, 5th, and 6th days of October 1888, are taken from the journal entries appearing in the record, which also shows that on Monday, the 8th day of October, the jury returned a verdict of guilty, in manner and form as the people in the information have charged, to-wit, the larceny of one red ox of the value of $50. Then follows the bill of exceptions, which states that the issue joined between the parties came on to be tried on the 20th day of October, 1888, before a jury duly impaneled and sworn, and from which it appears that upon the opening of the case to the jury by the prosecuting attorney it appeared that names of witnesses had been indorsed upon the information after it was filed, and of which the respondent's counsel had had no notice. On the court's attention being called to the fact, which fact was however disputed by the prosecuting attorney, he ordered them stricken off. The prosecuting attorney then made application to have the names of Dr. Brown, Jerry C. Gallup, Herman Wainwright, and Mahler Bray indorsed upon the information. The attorney for the respondent objected. The prosecuting attorney stated to the court that he felt sure that the name of Dr. Brown was on the information when it ws filed. His name appeared in the preliminary examination, but he did not suppose that he could be obtained, and his whereabouts only came to his knowledge after the information was filed. In regard to the witnesses Gallup and Bray he stated that he only learned yesterday (the first day of the trial) that they had any information connected with the case; that he discovered it by accident in talking with other parties. As to Wainwright, his whereabouts was discovered after the filing of the information. As to Brown and Wainwright, he knew that they had some knowledge, but was not aware of their whereabouts, or that he could obtain their testimony, until after the information was filed. As to Gallup, he had no knowledge that he was a material witness until the filing of the information. Upon this showing the court permitted him to add the names of Dr. Brown, Gallup, and Wainwright, against the objection of respondent's counsel, who stated that he was not prepared to go on with the trial, as he wished to examine into the character and standing of the witnesses; but the court ordered the trial to proceed, and the counsel for the defendant duly excepted. When these witnesses were produced the counsel for defendant objected to their being sworn for reasons above stated. We think that it must be held from the record that Dr. Brown's name was indorsed on the information at the time it was filed. The witnesses Bray and Gallup resided at Meridian, Ingham county, and Wainwright resided at Iosco, in Livingston county. All of these places were a considerable distance from Saginaw, the place of trial. The...