People v. Schultz, 75.

• Decision Date: 02 December 1946
• Docket Number: No. 75.,75.
• Citation: 316 Mich. 106,25 N.W.2d 128
• Parties: PEOPLE v. SCHULTZ.
• Court: Michigan Supreme Court

316 Mich. 106

25 N.W.2d 128

PEOPLE

v.SCHULTZ.

No. 75.

Supreme Court of Michigan.

Dec. 2, 1946.

OPINION TEXT STARTS HERE Appeal from Recorder's Court of Detroit; Joseph A. Gillis, Presiding judge.

Leonard Schultz was convicted of receiving stolen goods and he appeals.

Affirmed.

Before the Entire Bench, except DETHMERS, J.

Foss O. Eldred, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Gerald K. O'Brien, Pros. Atty., Andrew DeMaggio, Asst. Pros. Atty., both of Detroit, for the People.

Charles Bowles, of Detroit (Hugh V. Williams, of Detroit, of counsel), for defendant and appellant.

BOYLES, Justice.

The defendant, on leave granted, appeals from a sentence upon conviction by a jury in the recorder's court of Detroit for receiving stolen goods exceeding $50 in value, knowing the same to have been stolen, under section 535 of the Michigan Penal Code, Act No. 328, Pub.Acts 1931, Stat.Ann. § 28.803, as amended by Act No. 11, Pub.Acts 1941. (The 1941 amendment, Stat.Ann.1945 Cum.Supp. § 28.803, referring to third conviction, has no bearing on the case.) The first and only important question urged for reversal is as follows:

‘Did the court err in charging the jury with reference to the use and value of character evidence?’

After the defendant had testified in his own behalf the defendant produced two socalled character witnesses. We quote their testimony on that subject matter in full. One Jacob Rassner testified on his direct examination as follows:

‘I have never talked to anybody regarding the defendant.

‘Q. You wouldn't know anything about his reputation for truth and veracity? A. Well, so far whenever he comes in I give him goods and think a lot of him; otherwise I wouldn't give him any goods.

‘Q. Did you ever know of any dishonest act on his part? A. Not yet. I consider him to be honest and trustworthy.

‘Q. And what is your opinion as to his reputation for truth and veracity?

‘Q. As far as you know, his reputation is good? A. OK with me.’

On cross-examination he testified as follows:

‘My contacts with Mr. Schultz are just business connections. I don't associate with him socially.

‘Q. Did you ask anybody about Mr. Schultz? A. No. Somebody recommended him to me a couple years ago and I found him OK.

‘Q. He always paid his bills to you? A. Paid his bills and paid his notes.

‘Q. And you are basing your opinion on that? A. On that and on that basis I -I place my opinion that he is all right; because if he wouldn't be I wouldn't give him any goods, for sometimes he takes out a diamond amount to as high as $1500, $200, a stone, because I carry the biggest line in the city.’

It is apparent from the foregoing that an attempt was made to obtain testimony from this witness (1) as to the defendant's reputation for truth and veracity, and (2) as to honesty. In both particulars the testimony falls short of what the defendant claims for it. The opinion of a witness as to the defendant's honesty or truthfulness and veracity based solely on personal knowledge, when the witness had never talked with anybody regarding the defendant, is not proof as to reputation for truth and veracity or honesty. People v. Albers, 137 Mich. 678, 100 N.W. 908;People v. Nemer, 218 Mich. 163, 187 N.W. 315;People v. Bartlett, 312 Mich. 648, 662, 20 N.W.2d 758. The testimony adduced by the above witness does not support defendant's claim that the court erred in charging the jury as to the use and value of such character testimony. Such testimony above quoted cannot be said to rise to the dignity of character testimony.

One James Hords, the other character witness produced by the defendant, testified as follows:

‘I have known the defendant, Leonard Schultz, about three years and have done business with him over that period of time.

‘Q. Where did you meet him? A. I first met Mr. Schultz-I had a diamond brooch to sell and I was introduced to him through a third party, and that is the first time I met him; that is about three years ago. I have sold him merchandise since then, a few smaller pieces.

‘I have talked to other business men about him.

‘Q. Associates of his? A. Not associates of his but neighbors who I do business with myself, druggists and doctors in his immediate vicinity. By talking to them I know his reputation as a peaceful and law-abiding citizen.

‘Q. What is his reputation? A. Well, he holds a very fine reputation. They all think highly of him, and as a matter of fact, I have had Mr. Schultz--

‘The Court: Wait just a minute. I don't like to restrict this but, Mr. Prosecutor, you know the answers. They can't go into details. Do you know his reputation? A. Yes.

‘The Court: Is it good or bad? A. Good.

‘Q. And do you know his reputation for truth and veracity in the community in which he lives? A. I only heard good things said about him.

‘Q. Did you ever hear anything bad about him? A. No.’

While the questions asked this witness were not appropriate to prove reputation, the witness did testify that defendant's reputation for truth and veracity was good. Neither he nor anyone else testified as to the defendant's reputation for honesty. This was the only testimony on which the defendant could base a request made by the defendant that the court charge the jury as follows (Italics supplied):

‘The defendant in this case has produced witnesses who testified to his good character and good reputation for truth and veracity, honesty and integrity, and for being a quiet, peaceable and law-abiding citizen. Such evidence is often times sufficient to outweigh testimony of the greatest weight, for one of good character is less likely to commit an offense, than one held in less repute. Witnesses to the character of the defendant, who have never heard anything against his reputation for truth and veracity, honesty and integrity, and for being a quiet, peaceable and law-abiding citizen, are competent, for where nothing bad is said of one's general reputation for truth, veracity, honesty and integrity, and for being a peaceable, quiet and law-abiding citizen, then one's reputation in that regard is presumed to be good.

‘The weight you will give the testimony touching on his good character is something which you must determine from all of the evidence in the case, and you have a right to bear in mind the type and character of witnesses who have testified as to the defendant's good character and reputation. In this connection you have a right to bear in mind the station in life and positions of responsibility held by these witnesses in the community, as touching upon their credibility and the value and weight you are to give to their testimony in considering the question of defendant's good character.’

The request in the above language was plainly improper. It would have been untruthful and misleading. No witnesses had testified as to the defendant's good character and good reputation for truth and veracity, and there was no testimony whatever as to the defendant's reputation for honesty and integrity. The court did not err in refusing to give the charge in the language requested. In a charge otherwise careful and complete as to the claims of the people and the defendant, the law applicable to the case, and the duties and responsibilities of the jurors, the court charged the jury as follows:

‘Now, there has been some testimony, members of the jury as to the character of the respondent. When a person is charged with a crime or any other act involving moral turpitude, which is endeavored to be fastened on him by circumstantial evidence, or, by testimony of doubtful witnesses, he may introduce proof of his former good charcter, for honesty and integrity, to rebut the presumption of guilt arising from such evidence, which it may be impossible for him to contradict or explain; but, if the case is not doubtful, if the testimony carries conviction of the truth of guilt beyond a reasonable doubt to the minds of the jury, if it becomes evidence convincing and satisfying the minds and the consciences of the jury of the truth of the guilt of the accused beyond a reasonable doubt, then character, however grand and noble in the past, must give way to the inevitable results of crime, for crime is a maelstrom which washes out and makes blank the past history, burying it in oblivion. However good a man's character may have been in the past, if the proof is clear and convincing of his guilt, it would be the duty of the jury to say so. Good character helps where the proof is doubtful or uncertain, or, when there is reasonable doubt of the guilt of the party; but when this does not exist, it becomes the solemn duty of the jury to say, if they believe it, the word ‘guilty.’

‘In weighing the testimony as to character, members of the jury, you have a right to bear in mind the type of witnesses who testified as to the defendant's good character. I think he had two character witnesses, is that right? Were there two character witnesses?

‘Mr. Bowles: Yes, your Honor.

‘The Court: That is what I have here; the old gentleman, the wholesale dealer in diamonds, who had business dealings with him during the last two or three years; and the other man who had some business connection with him in selling some jewelry. Both testified he had good character.’

In view of the record, this charge was more favorable to the defendant than he had a right to expect.

In the above-quoted instruction given by the trial judge two paragraphs were taken verbatim from a charge which was approved in People v. Mead, 50 Mich. 228, 232, 233, 15 N.W. 95. While the Mead Case has not been expressly overruled by the court, that part of the charge in the Mead case which was quoted by the trial judge in the instant case has been considered in many subsequent decisions of this court.

‘Error is assigned on a portion of the charge relating to the proof of good character, which is as follows:

“Now, the good character of this respondent has been put in question. A man's good character is a valuable thing under all...