People v. Rosa
| Decision Date | 18 September 1934 |
| Docket Number | No. 129.,129. |
| Citation | 256 N.W. 483,268 Mich. 462 |
| Parties | PEOPLE v. ROSA et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Recorder's Court of Detroit; Donald Van Zile, Judge.
Albert Rosa and others were charged with killing. Albert Rosa was convicted, and he appeals.
Affirmed.
Argued before the Entire Bench.
Harry J. Lippman, of Detroit, for appellant.
Patrick H. O'Brien, Atty. Gen., and Harry S. Toy, Pros. Atty., and Sherman F. Kelly and Edmund E. Shepherd, Asst. Pros. Attys., all of Detroit, for the People.
On May 12, 1931, one Simon Pryzena was murdered in his place of business in the city of Detroit and Anthony Rosa, Albert Rosa, and Joseph Frendo were arrested and charged with the crime. Joseph Frendo was acquitted and the other defendants convicted, from which conviction the defendant Albert Rosa appeals.
On May 25, 1931, and while in custody, the defendant Albert Rosa made a statement, the purport of which was to implicate his brother Anthony Rosa and at the same time to disclaim any part in the murder for himself. On May 30, 1931, the defendant Albert Rosa made a second statement, admitting his guilt and stating that the reason he changed his story was that his wife had by letter and conversations urged him to tell the truth. On the trial the confession was read in evidence without objection.
The defendant cites a large number of errors alleged to have been committed on the part of the prosecuting attorney and the trial judge. The errors enumerated, however, may be classified as follows:
1. The introduction of that part of defendant's confession relating to a letter from defendant's wife to defendant urging him to tell the truth and conversations between defendant and his wife to the same effect.
2. Prejudicial remarks of the prosecuting attorney during the trial of the case.
3. Prejudicial remarks of the trial judge.
4. Cross-examination of defendant's character witnesses as to their knowledge of certain other offenses having been committed by defendant prior to the trial in this case.
The facts in relation to the first group of claimed errors are that while defendant was in jail his wife wrote him a letter and later called at the jail to see him and while there had a conversation with defendant in the presence of several officers. Defendant claims that the part of his confession telling of this letter and conversation should have been excluded as its admission was a violation of section 14221 of 3 Comp. Laws 1929, relating to privileged communications between husband and wife.
While the statute refers to ‘any communication,’ it is intended to embody the common law and therefore extends only to confidential communications. Hagerman v. Wigent, 108 Mich. 192, 65 N. W. 756;Ward v. Oliver, 129 Mich. 300, 88 N. W. 631;In re Thayer's Estate, 188 Mich. 261, 154 N. W. 32. A communication is not confidential if it was made for the purpose of or with the expectation of being disclosed. Hagerman v. Wigent, 108 Mich. 192, 65 N. W. 756;Barras v. Barras, 192 Mich. 584, 159 N. W. 147. Likewise, a communication is not confidential if made in the presence of others. People v. Bowen, 165 Mich. 231, 130 N. W. 706; and see cases cited in annotation 63 A. L. R. 116. The general rule is that the privilege and right to waive it belong to the person making the communication. Maynard v. Vinton, 59 Mich. 139, 26 N. W. 401,60 Am. Rep. 276; 5 Wigmore (2d Ed. 1923) § 2340.
In the instant case the communication complained of was made by the wife and not by the husband, and was in no way prejudicial to her rights. Assuming that the statutory privilege applies to admissions and confessions of the party claiming the privilege, the communication between defendant and his wife, having been made in the presence of others, was not privileged nor contrary to the rule above stated.
Defendant also complains that it was error on the part of the prosecuting attorney to ask Mrs. Baranowski, a character witness produced by the defendant, if she knew of certain other offenses in which the defendant had been implicated. However, in a statement made prior to the examination of Mrs. Baranowski, counsel for defendant stated that the defendant had been implicated in the offenses upon which the prosecuting attorney questioned Mrs. Baranowski. The case of People v. Hill, 258 Mich. 79, 241 N. W. 873, relied upon by defendant, is authority for the proposition that when a defendant has put his character in...
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People v. Fisher
...432 Mich. at 162, 438 N.W.2d 43, be intended to be confidential, and not be made in the presence of a third party. People v. Rosa, 268 Mich. 462, 464, 256 N.W. 483 (1934).11 The spouse would not need to testify at sentencing because the majority allows the police to take her testimony out o......
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People v. Vasher, Docket No. 99680
...his knowledge and candor ..., and for that purpose he may be asked if he has heard of specific acts of misconduct." People v. Rosa, 268 Mich. 462, 465; 256 N.W. 483 (1934). The prosecutor's rebuttal witness may testify only as to reputation, however. In this case, the prosecutor reversed th......
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People v. Omacht, 66
...opposing counsel to seek and obtain a ruling of the trial judge. People v. Goldberg, 248 Mich. 553, 227 N.W. 708.' People v. Rosa, 268 Mich. 462, 466, 256 N.W. 483, 485. In a case strikingly like the instant case in its background, without dissent, we held: 'Remarks of special prosecuting a......
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People v. Bigge
...to disregard the rules and practice usually required to assure justice to the state in the prosecution of offenders.' In People v. Rosa, 268 Mich. 462, 256 N.W. 483, 485, it is said: ‘Prejudicial remarks of counsel may be cured by proper and timely instructions. People v. Lincourt, 221 Mich......