People v. Smith

• Decision Date: 26 September 1895
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SMITH.

64 N.W. 200

106 Mich. 431

PEOPLE v. SMITH.

Supreme Court of Michigan

September 26, 1895

Error to circuit court, Muskegon county; Fred J. Russell, Judge.

James W. Smith was convicted of an assault upon Ate Goudberg with intent to do great bodily harm, and brings error. Affirmed.

Nelson De Long, for appellant.

Fred A Maynard, Atty. Gen., and R. J. McDonald, Pros. Atty., for the People.

GRANT, J. (after stating the facts).

1. The first contention of the respondent is that there was no evidence of any intent to commit the crime for which he was convicted, and that the court should have directed a verdict of not guilty of either intent to murder or intent to do great bodily harm. The difficulty with this defense is that no such contention was made at the trial, and it evidently did not then occur to the learned counsel for the respondent that the question was one of law for the court, and not of fact for the jury, for he made no request to the court to direct a verdict. This objection, therefore, comes too late. The next complete answer is that there was ample evidence to justify the finding of the intent. It is suggested that the intent was to rob. Undoubtedly this is true, but the same state of facts may often show two intents. They assailant evidently intended to inflict a blow of sufficient force to render Mr. Goudberg unconscious while he locked the store and escaped. He used a deadly weapon, and struck a vital part of the body. The intent was to do great bodily harm, in order that he might accomplish the robbery.

2. The defense was an alibi. The respondent introduced evidence tending to show that he and his wife were at his father-in-law's house, and left and drove home together, in the evening, and that, if this evidence were true, it was impossible for him to have committed the crime. A girl, then about 12 years old was living at respondent's house, and was a witness for him. Upon the direct examination she was only questioned as to when he cut his whiskers. Upon redirect examination, she testified that she was home on the day the assault was committed, that she had no recollection of the time she went to bed, but that respondent was at home when she did go. Upon the second redirect examination, respondent's counsel called her attention to a conversation between him, her, and the respondent's wife. She testified that she remembered an occasion when respondent and his wife went to town twice in one day, but did not know what day it was nor what time they came back, but that it was after dark. She also testified that she remembered speaking to Mrs. Smith when she got home, about the time. She was then asked to state the conversation, which the court refused to permit. The only possibly legitimate purpose for which this conversation could be used was to refresh the witness' recollection as to the time. She had testified that she remembered it, and it was unnecessary for her to repeat it, in order to refresh her recollection. The testimony was properly excluded.

3. A witness for the people, in reply to a question, "Do you know the defendant?" replied, "Yes, sir; I was unlucky enough to get acquainted with him." The latter part of the answer, which was not, of course, responsive to the question, was promptly stricken out by the circuit judge. The precise complaint seems to be that the judge was not sufficiently severe in rebuking the witness, and in not instructing the jury to give no weight to the statement. Comment upon this objection is unnecessary. Few cases would go unreversed if such trivial objections as this were to prevail.

4. A reversal is asked because of remarks made by the prosecuting attorney in his argument to the jury. The respondent's wife had testified that she...