People v. Thompson

• Decision Date: 22 March 1923
• Docket Number: No. 163.,163.
• Citation: 192 N.W. 543,221 Mich. 621
• Parties: PEOPLE v. THOMPSON.
• Court: Michigan Supreme Court

221 Mich. 621

192 N.W. 543

PEOPLE

v.THOMPSON.

No. 163.

Supreme Court of Michigan.

March 22, 1923.

Exceptions from Circuit Court, Newaygo County; Joseph Barton, Judge.

Perle Thompson was convicted of Violating the prohibition law and brings exceptions before sentence. Conviction affirmed, and case remanded for sentence.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. H. Monroe Dunham, of Grand Rapids, for appellant.

Wm. J. Branstrom, Pros. Atty., of Fremont, for the People.

FELLOWS, J.

Defendant was convicted of violating the prohibition law and reviews such conviction on exceptions before sentence. The date of the commission of the offense was alleged in the information under a videlicet to be the 12th day of August, 1921. The people's testimony, while not definitely fixing that date, approximated it. The defense was an alibi. The testimony introduced on behalf of defendant tended to show that both before and after that date he was at the residence of his father in Muskegon county some distance away, and that on the specific date he attended an auction sale over in Ottawa county. The only assignments of error discussed in the brief of appellant relate to the argument of the prosecuting attorney. They are, therefore, the only ones we can consider; all others are waived. Supreme Court Rule 40 (191 N. W. ix); People v. Oprita, 213 Mich. 13, 180 N. W. 387;Ward v. Carey, 200 Mich. 217, 166 N. W. 952;In re Warring's Estate, 196 Mich. 720, 163 N. W. 50, and authorities there cited.

In the case of People v. Osborn, 205 Mich. 531, 171 N. W. 471, we had occasion to consider the conduct of the prosecuting attorney in a criminal case, and we there said:

‘Cases are numerous in this court where we have had occasion to consider the conduct of counsel upon the trial of jury cases. We cannot undertake the review of all or any considerable portion of them. Where the conduct of counsel was prejudicial and was not or could not be cured by the trial judge we have reversed the cases. Where such conduct could be and was cured by the trial judge and the error was therefore without prejudice we have declined to disturb the judgments. * * * In many cases this court has taken occasion to seriously criticize counsel for improper conduct, but where the trial judge has carefully guarded the rights of the parties, and instructed the jury to disregard the misconduct and such misconduct could be cured, and was cured by the trial court, this court has in such cases declined to reverse the case because counsel in the heat of the trial oversteps the bounds of proper conduct.’

And in the recent case of Walz v. Peninsular Fire Insurance Co., 221 Mich. 326, 191 N. W. 230, we again reviewed numerous authorities and pointed out the proper practice to preserve the question for review.

In the main, the argument of the prosecuting attorney in the instant case was within the domain of proper argument. In some instances it is subject to criticism; in no regard did it constitute reversible error in view of the instructions given by the trial judge. Defendant called as witness his father and other relatives and acquaintances; they testified that he was at the auction sale. The prosecutor criticized their testimony and argued that the testimony of the auctioneer and the notice of the sale would be better evidence of the date of the sale and that they should have been produced by defendant. We do not think this argument was erroneous. People v. McGarry, 136 Mich. 316, 99 N. W. 147. It was improper for the prosecutor to state that he made the same argument when the case was tried the week before and that he then challenged defendant's counsel to produce such evidence, but we do not believe it was harmful. The testimony showed there had been a trial of the case the week before and it would probably be inferable that the...