People v. Swartz

• Decision Date: 03 October 1898
• Citation: 76 N.W. 491,118 Mich. 292
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SWARTZ.

76 N.W. 491

118 Mich. 292

PEOPLE v. SWARTZ.

Supreme Court of Michigan

October 3, 1898

Error to circuit court, St. Joseph county; George L. Yaple, Judge.

Adelbert D. Swartz was convicted of murder, and he brings error. Affirmed.

H. P. Stewart and Howard, Roos & Howard, for appellant.

Fred A Maynard, Atty. Gen., and Geo. H. Arnold, Pros. Atty. (B. E. &amp L. F. Andrews, of counsel), for the People.

MOORE J.

On the morning of the 13th of October, 1894, the dead body of Willard N. Johnson, with four bullet holes in his heart, was found in the St. Joseph river, near the Farrand Bridge, in the county of St. Joseph. The respondent is convicted of his murder, and has been sentenced to state's prison for life. He brings the case here by writ of error.

The record contains 75 assignments of error. It is not necessary to discuss many of them, though they have all had careful examination. Before the trial there was an application for a change of venue, upon the ground that respondent could not have a fair trial in St. Joseph county, because of the prejudice against him. Affidavits and counter affidavits were filed. The court denied the application. The record shows that a jury was obtained without serious difficulty, and before respondent had exhausted his peremptory challenges. After the respondent was convicted, a motion was made for a new trial, and it was then averred that the court erred in denying the application for a change of venue, and it was also said respondent did not have a fair trial, on account of the public feeling, which manifested itself during the trial both in and out of the court room, and because of the argument made by the prosecuting attorney. The statements contained in this application were supported by some affidavits, and were denied by many counter affidavits. The court denied the application for a new trial, and found that there was no serious difficulty in getting a jury, and that there was no evidence that the jury were improperly influenced within or without the court room. In his disposition of the petition, he found: "Whenever recess or adjournment was taken, the people in the court room were required to remain in their places until the jury had retired. While the jury were deliberating upon their verdict, officers of the court were stationed upon the ground outside of the court house to guard against any possible attempt on the part of any person to approach, influence communicate, or interfere with the jury in any manner; and I find that the officers performed their duties faithfully, and nothing transpired which could have prejudiced the respondent. There was no attempt during the progress of the trial, so far as I am able to ascertain, to intimidate or interfere with the witnesses for respondent. There was no manifestation of any such disposition in the court room. The claim of counsel for respondent in this respect is not sustained. I find that the circumstances surrounding the trial support the integrity and purity of the verdict." There is nothing in the showing made in this court which leads us to doubt the correctness of the conclusions of the trial court. There is no such showing as leads us to the conclusion that the court erred in refusing a change of venue. 4 Am. & Eng. Enc. Law, 818.

The case was tried at the May term of court, in 1895. The application for a new trial was denied at the October term of court. In July, 1896, a motion was made to have the application for a new trial reheard, upon the ground of newly-discovered evidence. Affidavits were filed in support of the motion, and counter affidavits were filed. The motion was overruled. This was practically an application for a new trial made more than a year after the case was tried. The statute contemplates applications for a new trial shall be made speedily. How. Ann. St. � 9576; People v. Marble, 38 Mich. 309; Frazer v. Chapin (Mich.) 70 N.W. 1042. But, even should it be conceded this application was made in time, no such showing was made as to indicate a wrong use of the discretion vested in the trial court in refusing a new trial.

Many assignments of error relate to the admission of testimony. One of the expert witnesses was asked, if a man having received wounds through the right side of his heart had hold of a rod or something with the left hand to steady himself, would it have a tendency to keep the body in an upright position longer than if he had not? An objection was made to the question, which objection was sustained. Counsel were afterwards told they might take an answer to the question. They now assign error. We do not deem it necessary to discuss the matter further than to say, if error was committed in sustaining the objection, it was afterwards cured by permitting an answer to the question. Stanton v. Manufacturing Co., 90 Mich. 12, 51 N.W. 101.

Some testimony was permitted to be given, when counsel for respondent objected that it was immaterial, which testimony was afterwards stricken out by the court. It is now urged that, as the court struck out the testimony, it must have been immaterial or incompetent, and, having been allowed to go to the jury, it worked prejudice to the respondent. Except as we shall discuss the testimony more in detail, it may be said of this testimony it was not of a character that could do any harm to the respondent, and might well have been left in the case. It was evidently stricken out of the case by the trial judge because of a desire to leave nothing in the case which could be possibly prejudicial to the respondent. When the court struck out this testimony, he cautioned the jury they must not consider it at all.

After the body was found, a coroner's inquest was held. The respondent was present, and talked a good deal about Mr Johnson, and the manner of his killing, and about offering a reward for the murderers, and about his relations with Mr. Johnson. Witnesses were asked about this conversation, and related it in detail. The witness was allowed to state as follows: "We were talking about folks feeling timid around where corpses were. He said they didn't affect him. Of course, he was a little bit affected being around Johnson's, the way he was killed. He said he had been in a room, and moved around, and hit them when he was alone, and he told about going out about twelve miles. He said an old man had been turned over to the school, and he said they went out, and got him, and took and tied his hands together and his feet together, and set him up in a buggy strapped to the seat, and they put a hat on his head, and everybody they met thought he was a living man sitting in there. Dell Swartz is studying for a physician. He showed us a letter that he got from the professor of the college, but I don't remember where." It is said this was a serious error. It was the theory of the people that respondent had lived with the deceased, who was his brother-in-law, for some time; that shortly before the murder, in the absence of Mr. Johnson, his wife, who was an invalid and a sister of the respondent, took their little girl, and, with the respondent, left her husband's house, and went to live with her father, 20 miles or more from the home of Mr. Johnson. It is claimed Mr. Johnson went to see his wife, and, when he arrived at her father's, the farm bell was rung for the respondent, before Mrs. Johnson would see her husband. It is said Mr. Johnson was not allowed to see his little girl; that there was ill feeling between the respondent and Mr. Johnson; that, after Johnson left the home of respondent, he stopped at the house of Mr. Tunison; that the respondent, assisted by some one else, waited for him near a piece of woods, when Mr. Johnson was shot dead; his body, horse, and cart were taken to the woods until people were not likely to frequent the roads, when his body, seated in a buggy, was conveyed several miles, to the Farrand Bridge, where it was thrown into the river, and a number of shots fired upon the bridge, and at the same time a revolver was thrown into the river, for the purpose of conveying the impression that Mr. Johnson had committed suicide. It is the claim of the people that rigor mortis had set in when the body was thrown into the river; that the legs were drawn up and in a position they would be if the body had stiffened while seated in the seat of a buggy, strapped to the back of the seat; that the arms were also rigid, and partly drawn back, one of the hands being nearly as high as the head. It is claimed, after the body was thrown...