People v. Ray

• Citation: 141 N.W.2d 320,2 Mich.App. 623
• Decision Date: 12 April 1966
• Docket Number: No. 9,No. 3,9,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank Seth RAY, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan (US)

Page 320

141 N.W.2d 320

2 Mich.App. 623

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank Seth RAY, Defendant-Appellant.

Cal. No. 9.

Court of Appeals of Michigan, Division No. 3.

April 12, 1966.

Paul A. Taglia, Killian, Spelman & Taglia, St. Joseph, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, John T. Hammond, Pros. Atty., Berrien County, St. Joseph, for appellee.

Before FITZGERALD, P.J., and HOLBROOK and T. G. KAVANAGH, JJ.

HOLBROOK, Judge.

Defendant was charged with manslaughter by operation of an automobile and convicted of negligent homicide in the circuit court for Berrien County before a jury, June 27, 1962, and sentenced August 13, 1962. Defendant's motion for a new trial was denied. On appeal to this Court, defendant asserts error on four grounds:

(1) There was not sufficient competent evidence presented at the preliminary examination to sustain the examining magistrate's binding defendant to the circuit court and to thereafter justify the trial court's denial of the motion to quash timely made.

(2) The trial court erred in receiving testimony from the witness Michael Quirk relating to speed of defendant's automobile without a proper basis therefor, and in the court's questioning of Michael Quirk.

(3) The trial court erred in refusing defendant's motion for a directed verdict as to count 2, there not being sufficient, competent evidence to submit the issue of defendant's being under the influence of intoxicating liquor.

(4) The trial court erred in refusing defendant's motion for a new trial. (Confined on appeal to the first three claimed errors hereinabove.)

The first issue to be considered is the sufficiency of the evidence produced at the examination to warrant binding the defendant over for trial in the circuit court. The test, upon preliminary examination, is stated by Mr. Justice Carr in the case of People v. Asta (1953), 337 Mich. 590, on p. 609, 60 N.W.2d 472, on page 482 as follows:

'Under the statute relating to preliminary examinations, C.L.1948, § 766.13, Stat.Ann. § 28.931, the magistrate may bind a defendant, or defendants, over to the circuit court for trial if it shall appear from the proofs that an offense not cognizable by a justice of the peace has been committed, and that there is probable cause for charging defendant, or defendants, therewith. In the instant case it was not required that the justice find the guilt of the defendants established beyond a reasonable doubt. People v. Hirschfield, 271 Mich. 20, 27 (260 N.W. 106); People v. Wilkin & Walsh, 276 Mich. 679, 687 (268 N.W. 779). It was essential, however, under the provisions of the statute, to determine that the offense charged had been committed, and that there was probable cause to believe that defendants were guilty.'

Gillespie in 1 Michigan Criminal Law & Procedure (2d ed.), § 303, p. 361, stated:

'* * * All facts and incidents which plainly relate to the offense are admissible. In many cases the application of strict rules of evidence would go far to defeat the object of the inquiry. The examining magistrate must be allowed a large discretion as to the extent and range of the inquiry. ¹ The magistrate does not act judicially in the technical sense, and the proceeding is one which, at common law, was conducted very much at the discretion of the magistrate.' ²

In reviewing the testimony presented at the preliminary examination, we find the following pertinent facts:

The time of the occurrence was June 21, 1961, about 4:30 in the afternoon. The scene was on M--60, an east and west highway, also known as Oak Street, paved and 22 feet in width, with gravel berms of eight feet on each shoulder. The immediate scene was just a few feet outside the east city limits of Niles, Michigan. The weather was clear, warm and sunny, and the pavement dry. Visibility was excellent for a considerable distance both east and west. The vicinity had commercial buildings on the north and residences on the south side of this street. A Standard service station was just north of the impact and two service stations and a shopping center were to the east thereof, and a Lutheran Church to the north and west, among other buildings in the area. The approximate place of impact was near the center of the north half of the said street in front of the west driveway of a Standard service station and at the T intersection of said street (M--60) and 20th Place, a street intersecting said highway from the south. Defendant was driving his 1959 Cadillac convertible in a westerly direction on M--60 approaching the city of Niles. A speed limit sign of 35 miles per hour was posted on the north side of the highway a few hundred feet to the east and had to be passed by defendant prior to reaching the scene of the impact. The speed limit east of this area was 40 miles per hour.

The decedent, an eight-year-old girl, and her older brother were riding their bicycles at the scene. Michael Quirk, a 16 year-old boy, was riding his motor scooter on 20th Place going north and had stopped at the south side of M--60 or Oak Street and saw decedent's brother finishing the crossing of the highway on his bike and entering the west driveway of the Standard service station, and also, observed the decedent apparently following her brother by a few seconds, crossing the highway, and momentarily going east in the center of the highway for a length of the bicycle before attempting the completion of crossing the highway to the north. When she was about in the center of the north portion of the pavement, she and her bike were struck by defendant's automobile and thrown in the air with great force. There was no sounding of a horn, but there was a loud screech of brakes and tires skidding. The decedent was thrown through the air and landed on the north berm of the road, approximately 150 feet west of the approximate point of impact. The bicycle finally stopped in the highway about a hundred feet west of decedent. The skid marks were plainly visible for 176 feet and started in front of the west drive of the Standard service station and proceeded west. The defendant's automobile finally stopped after turning around, evidently from the force of the stopping operation, after which it was driven to the south side of the road prior to the officer's arrival. The decedent was taken to the local hospital and expired as a result of the many injuries received.

The defendant after stopping his automobile, got out and went over on the north side of the highway and sat down on a piece of cement or rock where he was when trooper Beebe, the first officer, arrived. Officer Beebe testified that he noticed an unusual odor on the defendant and asked him if he had been drinking. Defendant replied that he had had a couple of beers. Another officer, Savoie, testified that he also smelled intoxicants on the defendant at the scene. Photographs of the scene, the automobile and the bicycle were introduced into evidence at the preliminary examination.

A Dr. Witte, doctor of physics and professor of physics at Notre Dame University, testified as an expert that in his opinion from certain facts given him, defendant was driving 56 miles per hour.

The testimony of Norman Schoenmaker, a state trooper, was to the effect that he came to the scene within an hour after the occurrence wherein the decedent was struck by defendant's automobile, and driving a 1960 coach police car, he drove in the same direction as defendant, and on the same highway, and in the same location, at a speed of 46 miles per hour, and applied his brakes, and skidded to a stop. A measurement of the skid marks that he made in this experiment were 136 feet in length.

The testimony of Dr. Witte given at the examination, when offered at the trial, by reason of Dr. Witte having moved to the west coast and being unavailable, was ruled inadmissible because of lack of certain facts showing in the record. The trial judge stated such facts may or may not have been supplied by Dr. Witte if he were available in person. This ruling of the trial judge was correct.

Because of Schoenmaker's unavailability, his testimony given at the preliminary examination was offered at the trial with the testimony of Dr. Witte. Upon Dr. Witte's testimony being ruled inadmissible, the people did not offer Schoenmaker's testimony separately.

Was the testimony of Schoenmaker's experiment properly admitted by the examining magistrate?

In 8 A.L.R. 18, Annotated, under title of experimental evidence as affected by similarity or dissimilarity of conditions, pp. 18, 26, it is stated:

'The general rule, as stated in the cases below cited, is that to render experiments permissible, or to admit evidence of experiments made out of court, the conditions need not be identical with those existing at the time of the occurrence, but that it is sufficient if there is a substantial similarity.' ³

'If the essential conditions under which the experiment or observation is made are substantially the same as those of the actual occurrence which is being investigated, any departure or minor variation goes to the weight rather than the admissibility of the evidence.'

Also, see, 85 A.L.R. 479, 480. ⁴

In Siegel v. Detroit Cab Co. (1929), 246 Mich. 620, 225 N.W. 601 an action for death of a pedestrian caused by being struck by an automobile at a street intersection where the pavement at the time of the accident was dry, and the driver of the car testified that when he first saw the deceased, he was 18 or 20 feet from the car and that he was not driving more than 12 or 13 miles an hour, it was held that evidence was properly admitted of witnesses for plaintiff who from tests made by them with a similar car, testified that if the brakes were in good condition when being driven 12 miles an hour, the car could be stopped within 2 feet when on a dry pavement. Also, see, 78 A.L.R.2d 218, § 2, pp. 220, 221. ⁵

We conclude that the examining...