People v. Row

• Decision Date: 26 January 1904
• Citation: 135 Mich. 505,98 N.W. 13
• Court: Michigan Supreme Court
• Parties: PEOPLE v. ROW.

98 N.W. 13

135 Mich. 505

PEOPLE v. ROW.

Supreme Court of Michigan

January 26, 1904

Error to Circuit Court, Oceana County; Fred J. Russell, Judge.

Isaiah Row was convicted of rape, and he brings error. Reversed.

F. E. Wetmore, for appellant.

Chas A. Blair, Atty. Gen., and Wallace Foote, Pros. Atty., for the People.

MOORE J.

The respondent was convicted of the statutory offense of rape upon his 12 year old daughter. He has brought the case here by writ of error.

Respondent objected to any witnesses being sworn, for the reason that the complaint before the justice was made upon information and belief, and a warrant based thereon was not a valid one. This objection was not made in the justice court, and an examination was had there. It also appeared at the trial in the circuit court that before the warrant was issued the daughter of the respondent was examined orally. We do not think the court erred in receiving this testimony. See People v. Rush, 113 Mich. 539, 71 N.W. 863, and the cases there cited.

Error is assigned because of what occurred between the trial judge and the witness during the examination of the complaining witness Rosenburger, which was as follows 'The Court: When you say you became satisfied that there was something in it, what do you mean by that? A. Well, I became satisfied that she told me the truth about this case. She told what her father had done. Q. Do you mean that you became satisfied that she had been raped? A. Yes, sir. Q. And it was probable that the old gentleman was guilty? Is that what you mean, or what do you mean? A. Yes, sir; I mean that. I was not willing to take hold of it, or make any move, until I was satisfied. Mr. Wetmore: I desire an exception on the record to the questions of the court. The Court: You have a right to do that.' It is likely this colloquy would not have occurred had it not been for the questions previously put to the witness by the prosecuting attorney, and his answers thereto, which were not objected to by the attorney for the respondent. This, however, did not make the testimony competent, and when the attention of the court was called to it he should have so held, and instructed the jury accordingly.

Mrs Baxter, a half-sister, was allowed to testify to a conversation with the girl three months after it was claimed the offense was committed, and this is said to be error. Justice Long, in People v. Duncan, 104 Mich. 464, 62 N.W. 556, collates the law applicable to such a case. It was competent to show by Mrs. Baxter the girl had complained of the outrage to her, but it was not competent for her to narrate in detail a long conversation she had with her in relation to the transaction.

Complaint is made that the respondent was not allowed to show statements made by one Ikey Young to the effect that the complaint should be made, the respondent got rid of, and Young get the farm upon which respondent was living. Mr. Young was not a witness, and we think no such conspiracy was shown to exist between him and the other witnesses as to make the evidence competent.

The respondent claimed at the time he was said to have committed the offense it was physically impossible for him to do so; that he was under treatment by one Dr. Munger who treated him for paralysis, and that he had paralysis, and that the doctor told him he had paralysis. The doctor was called, and testified, apparently without objection, that he treated respondent for rheumatism, and not for paralysis, and that he did not have paralysis. He was asked if he had not told several persons (their names, the times and places being called to his attention) that respondent had paralysis, and he denied he had so told them. For the purpose of impeaching the doctor these persons were called, but, as the judge thought the inquiry related to a collateral matter, they were not allowed to testify. We think the testimony should have been admitted. People v. De France, 104 Mich. 563, 62 N.W. 709, 28 L. R. A. 139; Strudgeon v. Sand Beach, 107 Mich. 496, 65 N.W. 616. What we have said about this offer to impeach the witness in this respect also applies to the offer to show that the witness had attempted to persuade persons not to go upon the bond of the...