People v. Stewart

• Decision Date: 02 May 1871
• Citation: 23 Mich. 63
• Court: Michigan Supreme Court
• Parties: Henry Stewart v. The People

23 Mich. 63

Henry Stewart v. The People

Supreme Court of Michigan

May 2, 1871

Heard April 27, 1871 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Bay circuit.

Stewart was informed against in the circuit court for the county of Bay, for breaking and entering in the night-time with intent to commit larceny, an office not adjoining to, or occupied with, a dwelling-house, no person lawfully therein being put in fear, and for feloniously stealing, taking, and carrying away from said office, eighteen spoons, one cake basket, six knives and six forks, of the value of sixty dollars, of the goods and chattels of Henry A. Braddock, then and there being found.

On the trial, before the jury were sworn, one of the jurors, Van H. Parmley, was challenged by the counsel for the defendant, and the cause assigned therefor was that said juror had seen the office mentioned in the information, soon after the alleged breaking and entering of the same, and had formed an opinion that the same had been broken and entered by somebody with the intent alleged in said information. And said juror being challenged as aforesaid, and being duly sworn, testified that he had seen said office at said time and had formed such an opinion, but had formed no opinion as to the guilt or innocence of said defendant, which challenge was then and there overruled by the court, and said juror permitted to remain on said jury.

Benjamin F. Meyrs, on behalf of the prosecution, testified that in the month of July, 1867, he had a conversation with defendant in Chicago, in which defendant told him where certain silverware was concealed in Bay City, that others were with defendant when said silverware was taken, and that said Meyrs came to Bay City afterwards, and in company with his brother, Frederick A. Meyrs, went and found the silverware in the place mentioned by said defendant. Upon cross-examination he denied that he had a conversation with Edward O'Connor one morning during the examination of the defendant before the justice, in which conversation he told said O'Connor that defendant was not the man with whom he had said conversation at Chicago; also that he told Robert McKinney, one morning about ten o'clock, on Water street, that defendant was not the man with whom he had the last mentioned conversation at Chicago; also denied that he told said O'Connor, said McKinney and Michael Kilduff, the Sunday previous to said defendant's examination before the justice, at said Meyrs' house, that the defendant was not the man with whom said Meyrs had said conversation at Chicago. And upon further cross-examination he testified that at the time of the said defendant's examination before the justice, he, said Meyrs, had been arrested for and was charged with the crime of murder, and was out on bail.

On re-direct examination said Meyrs testified that before said O'Connor, McKinney and Kilduff went to his house aforesaid, he had given evidence before the justice, preliminary to the issuing of the warrant for the defendant for the offense charged in said information; and after he had given such evidence before the justice, they came to his house and told him if he testified against the defendant they would throw up his bail, and that said Kilduff, McKinney and one Hamilton were his bail, and that he gave testimony as a witness against said defendant on the examination before the justice, and that afterwards he, said Meyrs, was surrendered up by his bail. And the prosecuting attorney thereupon introduced in evidence a portion of the statement made by said defendant in the case of The People v. Henry Stewart, in Saginaw county, under an information for the murder of William Gregory, in East Saginaw, in July, 1867, in which said defendant stated that he was in Chicago several weeks in July, 1867.

On the part of said defendant, said Edward O'Connor, Michael Kilduff, and Robert McKinney were called as witnesses and testified respectively that they were at said Meyrs' house on said Sunday, and that said Meyrs then and there told them that said defendant was not the man with whom he, said Meyrs, had said conversation at Chicago, and the said O'Connor testified on behalf of said defendant, that on said morning during said examination before the justice, said Meyrs told said O'Connor that said defendant was not the man with whom he, said Meyrs, had said conversation at Chicago; and the said McKinney testified, that one morning about ten o'clock, on Water street, said Meyrs told him that said defendant was not the man with whom said Meyrs had said conversation at Chicago.

In reply to the testimony introduced by defendant's counsel as aforesaid, Augustus Meyrs was called as a witness on behalf of the People, and testified that he was the brother of said Meyrs, and that he received a letter from his said brother while in Chicago in July, 1867, and that he remembered most of its contents.

The prosecuting attorney was thereupon sworn as a witness on behalf of the People, and testified as follows: "I had such a letter on the examination and I have seen it in my office since then, probably a month after the examination. Before this term of court commenced I made a careful examination among my papers in my office for the purpose of finding it, and I could not find it."

On cross-examination he testified that he examined the safe where he generally put such papers belonging to criminal matters, and examined through some but not all his drawers; that he had two safes, but that one of them he did not examine, as nothing of that kind was ever put in that; that he did not examine the files in this case because he saw the letter in his office since, and the files were not brought there; that he didn't examine one-quarter of the papers in his office, that he simply examined those places where it was likely to be or where if it was mislaid he would be likely to find it, but that he didn't go through all the files in the civil cases.

Thereupon, under objection from defendant's counsel, said Augustus Meyrs was asked to state what that letter was, and replied as follows, viz:

"That he was sick and there in Chicago. He says, Corcoran is here,--do you want him? Curley is here, too. If you want him, send word.'"

The said Frederick A. Meyrs testified further on behalf of the People to the effect that said "Curley" meant the said defendant.

John Doman, on behalf of the People, testified that he had been engaged during the past year and a half or two years in keeping jail; that Benjamin F. Meyrs was in his custody in that jail for about ten months, previous to the arrest of the defendant for this charge; that he had a conversation with him at that time relative to this offense.

He was then asked to state that conversation, and, under objection from defendant's counsel, was permitted to answer, and replied that he, Meyrs, said he had a conversation with the defendant in Chicago, and he had told him where the silver was, and he, Meyrs, had given information to his brother.

After the evidence was closed by both parties and the arguments of counsel heard, and the jury charged by the court, the jury retired from the bar of the court to consider of their verdict, and, it being the usual time to adjourn the court until the next morning, the court inquired of John McNamara, one of the counsel for said defendant, in the presence of said defendant, if he would consent that said jury render a sealed verdict, and that the usual instructions for that purpose be given them through the officer in charge of them, to which said counsel for said defendant, after some hesitation, gave his consent, and thereupon the court adjourned until the next morning at nine o'clock, the 23d day of April, A. D., 1870, on which day the said jury rendered a sealed verdict pursuant to said instructions. After the jury answered to their names, and on being asked if they had agreed upon their verdict, their foreman answered they had, and handed the sealed verdict to the court, which the court broke open in the presence of the said jury and of said defendant and his counsel, and said, "You find the defendant guilty,--so say you all?" in the usual form and then and there, before said jury had left their seats and before said verdict was put upon the records of the court, John McNamara, one of said defendant's counsel, requested the court that said jury be polled, in answer to which request the court said that the respondent having consented to a sealed verdict and one having been made and the jury separated, they could not be polled except to ascertain that the jurors had all joined in the verdict written before they separated. And the said counsel insisted then and there that said jury should be polled as a matter of right to the defendant, and still persisted in requesting that said jury be polled, and said court refused to permit said jury to be polled, no question having been raised in respect to the jurors having all joined in the sealed verdict returned to the court and such sealed verdict purporting to be signed by all the jurors.

Judgment reversed and a new trial ordered.

John McNamara, for the plaintiff in error:

The juror Parmley was disqualified because he was not impartial in respect to facts constituting an ingredient of the crime. The constitution guarantees to the individual the right of a trial by an impartial jury: Const., Art. VI, § 28. When the statute enumerates several elements as combining to create an offense, every such element must be alleged and proven: Koster v. The People, 8 Mich. 431; Crippen v. The People, 8 Mich. 117.

Secondary evidence as to the contents of a letter written by Meyrs from Chicago to his brother ...