People v. Rose

• Decision Date: 01 October 1934
• Docket Number: No. 133.,133.
• Citation: 268 Mich. 529,256 N.W. 536
• Parties: PEOPLE v. ROSE.
• Court: Michigan Supreme Court

268 Mich. 529

256 N.W. 536

PEOPLE

v.ROSE.

No. 133.

Supreme Court of Michigan.

Oct. 1, 1934.

Appeal from Circuit Court, Newaygo County; Earl C. Pugsley, Judge.

John W. Rose was convicted with going armed with a dangerous weapon, and he appeals.

Reversed, and new trial granted.

Argued before the Entire Bench.Maurice Sugar and John Safran, both of Detroit, for appellant.

Stanley B. Streeter, Pros. Atty., of White Cloud, and Harry D. Reber, Sp. Asst. Pros. Atty., of Fremont, for the People.

POTTER, Justice.

Defendant was arrested and informed against, charged in the first count of the information with assault with intent to do great bodily harm, less than the crime of murder; and in the second count with going armed with a dangerous weapon, to wit, a chain black-jack, contrary to the form of the statute, etc. On trial defendant was convicted under the second count in the information and on appeal assigns 113 errors. These may be grouped under a few heads.

It is claimed the trial court excluded questions to certain jurors which might have been a proper ground for peremptory challenge. The trial judge must be allowed to place some limit upon the extent of such examination. Ford v. Cheever, 113 Mich. 440, 71 N. W. 837.

(a) A large discretion is vested in the trial court as to the scope of examination of jurors on their voir dire.

(b) Even though the trial court improperly and erroneously restricted or extended the examination of jurors prior to their being sworn to try the case, such error is waived if plaintiff in error fails to exhaust his peremptory challenges. W. R. Roach & Co. v. Blair, 190 Mich. 11, 155 N. W. 696;Link v. Fahey, 200 Mich. 308, 166 N. W. 884;Webster v. Stewart, 210 Mich. 13, 177 N. W. 230.

(c) If the objecting party afterwards expresses himself as satisfied with the jury, he thereby waives the error. Snyder v. Mathison, 196 Mich. 378, 163 N. W. 104.

(d) Though this case is here on appeal, it must be considered and disposed of the same as if it were here under writ of error; the issuance of which is an exercise of the original jurisdiction of this court and under which the burden of establishing error is on the party who claims it.

We cannot consider these assignments of error for the reason it does not appear the defendant was in any way prejudiced thereby. There is no showing defendant exhausted his peremptory challenges and no showing he was not satisfied with the jury as sworn. Ford v. Cheever, 113 Mich. 440, 71 N. W. 837.

It is claimed a verdict for defendant should have been directed. There was direct evidence of defendant's guilt. The credibility of the witnesses testifying thereto and the weight of their testimony was for the jury.

Defendant asked that the names of eye-witnesses to the assault be indorsed on the information. This motion was supported by affidavit. It is claimed the failure of the court to order these names indorsed constitutes reversible error. Defendant was acquitted on the first count of the information, that is, of assault with intent to do great bodily harm less than the crime of murder, and it does not therefore appear defendant was prejudiced by the action of the court.

Defendant contends the information filed against him should have been quashed for the reason that it includes separate and distinct offenses arising out of different transactions and supported by different testimony, and these cannot be charged in the same information.

‘The true and only just rule as regards the joinder of counts in an information or indictment seems to be, if the different counts are drawn and used with a view to one and the same transaction, so that one of them, upon the trial, may be found to meet the evidence, the court will not interfere with the proceeding, as such an object is a legitimate one. It is a proceeding calculated to promote justice, and cannot confuse or prejudice the defense of the accused. But when the object and purpose is apparent to prosecute the respondent, and such is the logical effect, for separate felonies by means of one information or indictment, the court will not permit it to be done. The prosecutor has no right to do this, as its injustice and prejudice to the accused overbalances all possible benefits to be derived to the public from such a practice.’ People v. Aikin, 66 Mich. 460, at page 470, 33 N. W. 821, 825,11 Am. St. Rep. 512.

This rule does not apply where the information charges a greater offense which necessarily includes a lesser. Under such circumstances a defendant may be convicted of the lesser offense though the same is not charged in the information. People v. Prague, 72 Mich. 178, 40 N. W. 243.

‘The reasons are that the offense springs from the same transaction, and is supported by the same class of testimony.’ People v. Prague, 72 Mich. 178, 40 N. W. 243.

Nor does this rule apply to different offenses, charged in separate counts, growing out of the same transaction and covered by the same testimony. In such cases the court will not quash the information nor compel an election between counts. People v. Sweeney, 55 Mich. 586, 22 N. W. 50;People v. McDowell, 63 Mich. 229, 30 N. W. 68;People v. Prague, 72 Mich. 178, 40 N. W. 243;People v. Summers, 115 Mich. 537, 73 N. W. 818;People v. Durham, 170 Mich. 598, 136 N. W. 431;People v. Warner, 201 Mich. 547, 167 N. W. 878;People v. Hatfield, 234 Mich. 574, 208 N. W. 682;People v. Lewis, 264 Mich. 83, 249 N. W. 451.

The applicable statute provides: ‘No indictment shall be quashed, set aside or dismissed for any one (1) or more of the following defects: (First) That there is a misjoinder of the parties accused; (Second) That there is a misjoinder of the offenses charged in the indictment, or duplicity therein; (Third) That any uncertainty exists therein. If the court be of the opinion that the first (1st) and second (2nd) defects or either of them exist in any indictment, it may sever such indictment into separate indictments or informations or into separate counts as shall be proper. If the court be of the opinion that the third (3rd) defect exists in any indictment, it may order that the indictment be amended to cure such defect.’ Section 17289, Comp. Laws 1929.

There was no error in the court refusing to quash the information or to compel an election between counts by the people.

Defendant testified he did not have a chain black-jack prior to the commission of the alleged offense. The people called certain rebuttal witnesses who testified defendant had a chain black-jack in his possession on prior occasions. Defendant sought to impeach these rebuttal witnesses by showing by other witnesses their reputation for truth and veracity was bad and they should not be believed under oath. This proffered testimony was excluded by the court.

‘The purpose of any inquiry into the character of a witness is to enable the jury to determine whether he is to be believed on oath. Evidence of his reputation would be irrelevant for any other purpose. And a reputation which would not affect a witness so far as to touch his credibility under oath, could have no proper influence. * * *

‘The reason given is that, unless the impeaching witness is held to showing the extent to which an evil reputation has affected a person's credit, the jury cannot accurately tell what the witness means to express by stating that such reputation is good or bad, and can have no guide in weighing his testimony. And since it has become settled that they are not bound to disregard a witness entirely, even if he falsifies in some matters, it becomes still more important to know the extent to which the opinion in his neighborhood has touched him.’ Hamilton v. People, 29 Mich. 173.

In the case above, the court reviewed the English authorities, and text-books in common use, and came to the conclusion indicated. This rule has not since been departed from in this state. It was prejudicial error not to permit this impeachment.

It is alleged the court was in error in permitting witnesses to be impeached upon a collateral matter. Defendant was cross-examined in relation to his conduct on an occasion similar to that which gave rise to the offense charged in the information, at another time, in another county, and on a different occasion.

‘In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.’ Section 17320, C. L. 1929.

The object of the statute above quoted was to make testimony relevant which might otherwise not be so; to broaden the scope of inquiry as to similar transactions; to make relevant evidence of transactions which in the absence of the statute would not be relevant. Ordinarily a witness may not be impeached upon questions relating to a separate and distinct offense at another time and place. A witness may not be impeached upon a collateral issue. Mills v. Warner, 167 Mich. 619, 133 N. W. 494. But the purpose and object of the statute above quoted was to do away with the rule as to proof of other offenses and permit the introduction of such testimony even though it might show or tend to show the commission of another prior or subsequent offense by defendant.

At common law the names of witnesses were not required to be indorsed on an indictment for any purpose connected with the trial. Witnesses before a grand jury were usually sworn in open court before being sent before the grand jury, and a list of such witnesses was indorsed on the back of the proposed indictment as...