People v. Raider

• Decision Date: 08 December 1931
• Docket Number: No. 212.,212.
• Parties: PEOPLE v. RAIDER.
• Court: Michigan Supreme Court

256 Mich. 131

239 N.W. 387

PEOPLE

v.RAIDER.

No. 212.

Supreme Court of Michigan.

Dec. 8, 1931.

Appeal from Recorder's Court of Detroit; John V. Brennan, Judge.

Morris Raider was convicted of manslaughter, and he appeals.

Affirmed.

Argued before the Entire Bench.

Edward H. Kennedy, of Detroit, for appellant.

Paul W. Voorhies, Atty. Gen., and Harry S. Toy, Pros. Atty., and Edmund E. Shepherd, Asst. Pros. Atty., both of Detroit, for the People.

FEAD, J.

Defendant was convicted of manslaughter in connection with the killing of Arthur Mixon, a colored boy, as he came out of a drug store at the corner of Hendrie and Hastings streets in the city of Detroit on July 22, 1930. A few minutes before, Mixon and some other colored boys were driving along a nearby alley, peddling ice. Mixon got off the wagon and looked under the door of a building used by defendant, Phillip Keywell, and two others as a liquor ‘cutting’ plant. The people claim that Keywell, accompanied by defendant and some other white men, took Mixon to task for looking under the door, a short verbal altercation ensued, defendant exclaimed to Keywell, ‘Put him on the spot,’ and Keywell shot and killed Mixon. Trial commenced November 12th.

Keywell was tried, the jury disagreed, and at a second trial on October 16, 1930, he was convicted of murder in the first degree. Immediately thereafter, four witnesses for the defense, who had testified that they had witnessed the crime, were arrested for perjury, on order of the prosecuting attorney, for testifying that Keywell was not present and did not kill Mixon. The three leading newspapers of Detroit carried news articles of the arrest of these witnesses and some mentioned that defendant was to be tried soon. Defendant moved for continuance until the perjury cases were tried, on the ground of prejudice from the arrests and publicity. The motion was denied and defendant alleges error.

Continuance was within the sound discretion of the court. The burden is on the party claiming abuse of discretion to show it. Prejudice to defendant must be apparent or proved to have been at least probable. The news articles were not inflammatory. Prejudice to defendant would not necessarily proceed from the arrest and publicity. The voir dire examination of the jury is not in the record. There was no showing that the arrests and charges came to the attention of the panel. Upon the record we cannot say that the court abused its discretion.

Defendant moved that the people be required to indorse on the information as res gestae witnesses the names of the four men so arrested for perjury. Error is assigned on the denial of the motion.

The rule that the prosecution must indorse and call all the eyewitnesses to a crime of violence who are available, except when they are numerous and those not called obviously would be merely cumulative, although rejected or materially modified in most or all other American jurisdictions, 16 Ann. Cas. 918, note; 16 C. J. p. 846; 2 Michie on Homicide, 1362, is too well established in this state to need the citation of authorities. While the prosecution attempts to excuse the production of the witnesses upon the ground that he did not know they were eyewitnesses, Wellar v. People, 30 Mich. 22, they had so testified under oath and, in view of the fact that the identify of the assailants was the vital issue, the rule was applicable, People v. Blazenzitz, 212 Mich. 675, 180 N. W. 370, unless the perjury proceedings gave rise to an exception. Whether it did presents a unique question upon which no decisions, analogous or in point, have been found. A somewhat similar situation arose in State v. Harras, 22 Wash. 57, 60 P. 58, but the point here was not there involved.

The purposes of the rule are to insure the disclosure of the whole of the res gestae, to protect the accused against the suppression of testimony favorable to him, and to give him the benefit of cross-examination. The rule is not without exceptions. The wife of an accused need not be called by the prosecution although her name is indorsed on the information and he demands the right to cross-examine her, People v. Wolcott, 51 Mich. 613, 17 N. W. 78; nor need she be indorsed as a witness, People v. Hossler, 135 Mich. 384, 97 N. W. 754; one charged as an accessory need not be called by the people, People v. McCullough, 81 Mich. 25, 45 N. W. 515;People v. Resh, 107 Mich. 251, 65 N. W. 99; and a sister of the accused was required to be called only because she was the fiancée of the victim, People v. Germaine, 101 Mich. 485, 60 N. W. 44. In none of the cases establishing an exception was authority or reason given for it, except that in People v. Resh the court curtly announced the exception on the basis of reason and common sense. Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by community of interest in the crime or relationship, to perjure themselves, if they deem it necessary, in his behalf and the incongruity of requiring the prosecution to make such witnesses its own.

When a prosecuting attorney, in his quasi judicial capacity, has taken the serious and solemn official action of formally charging a witness with perjury, an unbending rule of law would be an anomaly which would require the court to compel the prosecutor to present the witness on behalf of the state to give testimony upon the transaction out of which the charge of perjury arose. Virtually, it would amount to requiring the court to order a repetition of the perjury, if the testimony be false and the witness adhere to it. No consideration of the protection of an accused or his right to a fair trial could demand such a rule. On the other hand, an exception which would permit the prosecutor to select his witnesses, by means of laying charges of perjury against those adverse to him, would endanger the legal rights of the accused and also be...