People v. Tann, 82

• Decision Date: 07 December 1949
• Docket Number: O,No. 82,82
• Citation: 40 N.W.2d 184,326 Mich. 361
• Parties: PEOPLE v. TANN. ctober Term.
• Court: Michigan Supreme Court

Page 184

40 N.W.2d 184

326 Mich. 361

PEOPLE v. TANN.

No. 82, October Term.

Supreme Court of Michigan.

Dec. 7, 1949.

Edward N. Barnard, Detroit, for appellant.

Stephen J. Roth, Attorney General, Edmund E. Shepherd, Solicitor General, Lansing, Gerald K. O'Brien, Prosecuting Attorney for Wayne County, Michael A. Guest, Assistant Prosecuting Attorney, Detroit, for the People.

Before the Entire Bench.

SHARPE, Chief Justice.

Defendant, Henslee Tann, was charged, tried and convicted of the crime of rape. The prosecution's witness Frances Lessard testified that she was an unmarried woman of 25 years of age; that on January 21, 1948, she came to Detroit at about 8:45 a. m., and registered at the Tuller Hotel; that she was pregnant and wanted information about the possibility of an abortion; that at 1 p. m., she telephoned Dr. Tann and made an appointment with him for between 4 and 8 p. m.; that at 6 p. m., she was admitted to the premises; that while waiting in the living room she engaged in a conversation with another girl about her 13 months old baby who was in a play pen in the same room; that in about 10 minutes Dr. Tann asked her to come into the examination room; that there was a discussion about an abortion; that the doctor suggested an examination whereupon she removed her coat and went to the bathroom to produce a sample of urine; that upon her return from the bathroom she was asked to remove her panties and tole to lie flat on her back on a table used for the examination; that during the examination the doctor had sexual intercourse with her without her consent; and that she rushed out of the house. Miss Lessard, after leaving Dr. Tann's office, went to a nearby drug store where she procured a taxicab and was driven to Receiving Hospital. At the hospital she was examined by Dr. A. C. Winegar, a member of the Receiving Hospital staff, 'for evidence of rape.' He found, 'No abrasions or redness of the vulvular skin. * * * no tears or bleeding of the vaginal mucous membranes' and 'no genital trauma.'

It also appears that during the trial Richard Miller, a police officer, testified as to a conversation he had with defendant in which the following occurred:

'The Court: Have you given us the gist of all the questions and answers? A. No, did not, did more questioning. I stopped there momentarily.

'Q. I mean did it pertain to the same girl? A. Yes.

'Q. What was it? A. I said, 'Do you mean to tell me that this girl would come down here and lay her soul open to the world--a girl in her position, in order to recover ten dollars in this day and age?' And I said, 'You're' I said, 'I don't believe you"

Whereupon counsel for defendant made a motion for a mistrial. The court denied the motion and instructed the jury as follows: 'The Court: Members of the Jury, the questions and answers particularly the answers given by this witness in relation to what he tole Dr. Tann, and what his opinion was of Dr. Tann's claim, and this witness's opinion as to whether or not Dr. Tann's statement to him was true or untrue, is stricken from the record, and you are instructed to disregard it entirely. Strike it from your minds and do not consider it as having been testimony in this case, because what this witness or any other witness in this case may think about the testimony or statements of anyone else is of no weight whatever. That is for you and you alone. Go ahead.'

It appears that Dr. Tann is a colored person and, from pictures introduced in evidence, Jean Carpenter, the lady who was in the doctor's living room with the baby, appears to be a white person. During the cross-examination of defendant he was questioned as to his relations with Jean Carpenter and asked to identify photographs of himself and Jean Carpenter taken at a beach while they were in bathing suits. Over objections the court admitted the photographs, whereupon defendant's counsel made a motion that Jean Carpenter be indorsed upon the information as one of the people's witnesses. The trial court did not require indorsement of the name of Jean Carpenter as a witness on the information or require her to be produced in court as a witness.

Upon leave being granted, defendant appeals and urges that the trial court was in error in denying defendant's motion to require indorsement of the name of Jean Carpenter on the information as a people's witness and in not requiring her production in court by the prosecutor.

The record shows that the alleged crime of rape was committed on January 21, 1948; the information was filed on February 4, 1948; and the trial began February 15, 1948, before a jury. At the time the motion to indorse was made, the following information was available to the prosecutor. Shortly after Miss Lessard entered the doctor's office, she saw Jean Carpenter there. When Miss Lessard went into the...