People v. Spears

• Decision Date: 01 December 1927
• Docket Number: No. 126.,126.
• Parties: PEOPLE v. SPEARS.
• Court: Michigan Supreme Court

241 Mich. 67

216 N.W. 398

PEOPLE

v.SPEARS.

No. 126.

Supreme Court of Michigan.

Dec. 1, 1927.

Error to Circuit Court, Ingham County; Charles B. Collingwood, Judge.

Bert Spears was convicted of selling and furnishing intoxicating liquor, and he brings error. Affirmed.

Argued before the Entire Bench.

James J. Spillane, of Detroit, for appellant.

W. W. Potter, Atty. Gen., and Barnard Pierce, Pros. Atty., and Joseph W. Planck, Asst. Pros. Atty., both of Lansing, for the People.

NORTH, J.

The appellant was charged with unlawfully selling and furnishing intoxicating liquors. In the complaint, warrant, and information this violation was specifically charged as a second offense, and defendant was found guilty. The first two assignments of error are based upon the refusal of the trial court to quash the information or at least his refusal to strike out that portion of the information whereby this violation was charged as a second offense; it being defendant's claim that there was no competent evidence introduced at the examination to support the charge as a second offense. The record contains the testimony of a deputy county clerk, who produced before the examining magistrate the records concerning the conviction and sentencing in Ingham county of one Bert Spears on a charge of illegally transporting intoxicating liquors. From such records the defendant in that case appeared to have been arraigned September 28, 1925, convicted by a jury October 16, 1925, and sentenced October 20, 1925. But it is contended there was no evidence of identity between the defendant, Bert Spears, in that case and the defendant, Bert Spears, in this case. At the examination there was no such proof except the identity of name and location; but this was sufficient for the purposes of the examination and holding the defendant for trial at the circuit. The statute (Comp. Laws 1915, § 15682) only requires ‘it shall appear * * * that there is probable cause to believe the prisoner guilty’ of the offense charged.

‘The great weight of authority is to the effect that from the identity of names identity of persons will be presumed, unless, perhaps, the name is a very common one or there are other special circumstances creating confusion in the identity. This rule has frequently been applied in criminal as well as civil proceedings.’ 19 R. C. L. 1332; People v. Absher, 240 Mich. 107, 214 N. W. 954;Atwood v. Sault Ste, Marie Light Co., 148 Mich. 224, 111 N. W. 747,118 Am. St. Rep. 576;People v. Robinson, 135 Mich. 511, 98 N. W. 12;Clow v. Plummer, 85 Mich. 550, 48 N. W. 795.

The third assignment is that the trial court permitted the names of three additional witnesses to be indorsed on the information on the day of trial and before the jury was drawn. The statute (Comp. Laws 1915, § 15761) requires the prosecuting attorney to indorse the names of witnesses known to him at the time the information is filed, ‘and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him.’ Only two of these witnesses were sworn, Hugh Silsby and George Bearup. They were sheriff and deputy sheriff, respectively, of Ingham county, and were the officers who arrested the defendant for illegally transporting liquor in 1925. They testified they knew respondent, and presumably he had some recollection of them. Their testimony had to do only with the question of identity. There was no dispute in the testimony on this issue; and the defendant's wife, whom he called as a witness, testified that her husband was convicted in the former prosecution. At the time the order was made for indorsing these names, the defendant made no application for a continuance. His rights were not prejudiced by the order. People v. Mills, 94 Mich. 630, 54 N. W. 488;People v....