People v. Sullivan

• Decision Date: 06 September 1939
• Docket Number: Nos. 117,118.,s. 117
• Citation: 287 N.W. 567,290 Mich. 414
• Parties: PEOPLE v. SULLIVAN et al.
• Court: Michigan Supreme Court

290 Mich. 414

287 N.W. 567

PEOPLE

v.SULLIVAN et al.

Nos. 117, 118.

Supreme Court of Michigan.

Sept. 6, 1939.

John Lawrence Sullivan and Samuel (Sammy) Sawaya were convicted of robbery while armed, and they appeal.

Affirmed.Appeal from Circuit Court, Monroe County; Clayton C. Golden, judge.

Argued before the Entire Bench.

Fitzgerald & Walker, of Detroit, for appellants.

Francis T. Ready, Sp. Pros. Atty., of Monroe, for the People.

BUTZEL, Cheif Justice.

Separate complaints were made against each of the defendants. The cases were tried together, but with the understanding that they were distinct. The record is sent here on two appeals which are again heard together. The charge against both defendant Samuel (Sammy) Sawaya and defendant John Lawrence Sullivan is robbery while armed.

On December 6, 1937, between eight and nine o'clock in the morning, the Family Theatre in Monroe was held up by two masked bandits. From the foyer of the theatre there are two stairways on opposite sides leading to the second or mezzanine Floor and the balcony of the theatre. At the head of one of the stairways is located the office of the management. As various persons entered the theatre to transact business on the second floor, they were met by the bandits who displayed revolvers and forced each person in turn to go to the mezzanine and lie face downward on the floor. The bandits then proceeded to tie their hands and tape their legs. Five people were systematically disposed of in this way. Mr. Denniston, the manager of the theatre, was given a similar reception but only after the bandits had led him into his office at the point of a gun and forced him to open the safe. After it had been opened, the bandits demanded a black bag which was used for carrying the receipts of the theatre to the bank, and which was hanging near the safe just inside the coat closet. The money from the safe, $1,607, was transferred to the bag and Denniston was tied up and forced to lie beside the others. Then the bandits disappeared into the street. As they left the theatre one was still masked. They were carrying the black bag between them.

Defendants were subsequently apprehended and identified in the police departments of Detroit and Toledo, Ohio. At the trial they denied all connection with the crime. Necessarily, the principal question involved their identification as the bandits who committed the robbery. Appellants claim that there is a total want of evidence to establish such a connection and argue that a verdict should have been directed in their favor. The record does not disclose such a lack of proof as to evoke application of the rule of People v. Minney, 115 Mich. 534, 119 N.W. 918, where a verdict was directed for defendant in a criminal case. The witness Brooks, an employee of an insurance company, testified that he passed by the Family Theatre at about 8:10 a. m. on the morning in question and that he was absolutely positive that he saw defendant Sullivan standing in front of the theatre. He paid particular attention to Sullivan, he said, both because he looked like a stranger in the city and because he was standing in a peculiar manner with his face toward the wall, one hand on his hat pulled down over his face, and one hand in his right pocket. Witness Frank, a contractor, was positive that Suilivan was the taller of two men he had seen coming out of the theatre about a quarter to nine that morning in the company of a masked companion. The description of the taller bandit by Mr. Denniston and witness Carley, both of whom were tied up in the theatre, accords with the physical characteristics of defendant Sullivan as to height, build and manner of walking. In regard to defendant Saways, he was positively identified by the janitor of the theatre, Mr. Sheldon, as the shorter of the two bandits who participated in the hold-up. The witness said he observed Sawaya's features when the handkerchief he was wearing as a mask momentarily slipped from his nose. His identification was confirmed by Miss Barr, the secretary of Mr. Denniston.

Identity, which may be established by circumstantial evidence alone, People v. Stewart, 163 Mich. 1, 127 N.W. 816, was here shown by positive testimony. There was sufficient proof to carry the case to the jury for trial of the issue of fact. See People v. Lowrey, 217 Mich. 431, 186 N.W. 396. Appellants point out various factors tending to show that the robbery was an ‘inside job,’ such as the bandits' apparent knowledge of the identity of the manager, Mr. Denniston, and their familiarity with the premises and the black bag used to carry deposits to the bank. This evidence was properly presented to the jury who, apparently, were unconvinced by it. The same is true of defendants' alibi witnesses, one 18 and the other 16 years old, residents of Parkersburg, W. Va., who claimed to have seen both defendants and five other persons every single day from the 25th of November to the 14th of December, 1937, in Parkersburg. The credibility of their testimony was seemingly rejected by the jury. With that decision this court cannot interfere.

Witness Carley testified that he was struck with the similarity between the voice of the smaller bandit in the theatre and with that of defendant Sawaya when he saw him at the police station where preliminary identification was made. He said Sawaya spoke in a very low undertone just as at the theatre. On cross-examination Carely was asked whether he had at any time since he was tied up in the theatre been able to recognize any voice similar to Sawaya's. ‘Undoubtedly voice is a competent means of identification,’ State v. Karas, 43 Utah 506, 136 P. 788, 790. And it was proper for the witness to indicate points of similarity in the two voices. It was also proper cross-examination to show that a low undertone is not so unique a quality of the human voice as to establish beyond question the identity of Sawaya and the shorter bandit. Particularly in a criminal case, questions on cross-examination affecting the weight of a witness' story should not be...