People v. Todaro

• Decision Date: 27 February 1931
• Docket Number: Nos. 160,161.,s. 160
• Citation: 253 Mich. 367,235 N.W. 185
• Parties: PEOPLE v. TODARO et al.
• Court: Michigan Supreme Court

253 Mich. 367

235 N.W. 185

PEOPLE

v.TODARO et al.

Nos. 160, 161.

Supreme Court of Michigan.

Feb. 27, 1931.

Error to Circuit Court, Wayne County; Guy E. Miller, Judge.

Joseph Todaro and others were convicted of robbery armed, and they bring error.

Affirmed.

Argued before the Entire Bench.

WIEST, C. J., and BUTZEL, J., dissenting in part.

Chawke & Sloan, of Detroit, for appellant.

Frank S. Valenti and Donald McGaffey, both of Detroit, for appellant De Piazzi.

Wilber M. Brucker, Atty. Gen., and James E. Chenot, Pros. Atty., and Donald F. Welday, Asst. Pros. Atty., both of Detroit, for the People.

POTTER, J.

Defendants were informed against, tried jointly with other defendants, convicted of robbery armed, and bring error.

October 27, 1929, at 3848 High street, Ecorse, a house of prostitution and cabaret was in operation, and many of its inmates and patrons present. At about 1:45 a. m., at an apparently concerted signal, the inmates and patrons were held up and robbed. The police were called, five officers responded, several arrests were made, and a part of the spoils of the robbery recovered. Defendants were present at the time of the robbery. De Piazzi claims he was there as a patron, did not participate in the robbery, but was himself held up and robbed. He denied acquaintance with the other defendants and testified he was arrested in the front room of the house where he was talking with a girl. The officer making the arrest testified he was arrested on the front porch, behind a swinging hammock, near which, soon afterwards, a revolver was found. De Piazzi was searched after his arrest, but nothing was found on him. Todaro, after the officers arrived, was seen hiding behind the door of a lavatory. A pistol was found on a washboard of a sink past which Todaro went from the room where the holdup and robbery took place to this lavatory. Todaro denied acquaintance with the other defendants, protested his innocence, claimed he heard a shot, and hid because he thought there was a raid or a holdup. He was searched, but nothing found on him.

The other defendants who were jointly indicted with De Piazzi and Todaro denied acquaintance with each other or with De Piazzi and Todaro, participation in the robbery, and protested their innocence.

It is claimed the people failed to produce all the res gestae witnesses whose testimony was not cumulative. The record does not show who these witnesses were. No subpoena was refused defendants. The people sought to subpoena several witnesses, claimed to have been present at the holdup and robbery, but was unable to locate them. The people are under no obligations to produce unknown witnesses.

The court charged the jury: ‘It is the duty of the People to produce all available eye-witnesses or excuse their non-production in a proper way. It was the duty of the People to produce the witnesses whose names are endorsed on the information. Certain of those witnesses have not been produced. There has been testimony here offered of efforts to locate these witnesses with witness subpoenas for the purpose of bringing them into court and putting them on the stand in order that you might hear their stories. Now, if that was a reasonable effort, if the prosecution has shown reasonable pains to find those witnesses and bring them here, then that duty has been discharged. But if the prosecution has not used due diligence, and has failed to produce testimony which would be material and which would assist in unraveling this charge, then that duty has not been discharged. And that is a matter which it is fair and right for the members of the jury to take into consideration in determining the outcome of the case.’

Complaint is made that the name of the witness Sage was indorsed on the information during the trial. The witness was one of the officers who made the arrest. His name should have been indorsed on the information. Section 40, c. 7, Act No. 175, Public Acts 1927, provides: ‘Names of other witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.’ Under the circumstances the indorsement of the name of the witness Sage on the information was not error. People v. Tamosaitis, 244 Mich. 258, 221 N. W. 307.

In submitting the question of De Piazzi's guilt to the jury, the court charged that, if they believed the testimony of the arresting officer that defendant was arrested on the front porch, hiding behind the swinging hammock, they would be justified in concluding he sought refuge there and was hiding, and in coming to the conclusion the pistol found on the front porch near where he was arrested was his pistol, placed there by him when he was seeking to escape the officers and the responsibility for the holdup and robbery; but that defendant disputed and denied the testimony of the officer as to the way in which the arrest took place, and said he never had a pistol on his person and did not take any part in the holdup.

The court further charged: ‘It is for you to determine whether the fact is that he did run away and hide in that front room, whether it was his pistol, and whether he secreted the pistol there in order that he might not be found with it on his person. If you find that he did run away and that he did hide the pistol and that he did have a pistol then the fact of his seeking escape, the fact of his secreting himself and the fact of his having a pistol are all circumstances which bear upon the question of guilt or innocence and which it is necessary for you to take into consideration in determining the question of his connection with this affair.’

The trial court's comments upon the evidence are criticized. In People v. Lintz, 244 Mich. 603, 222 N. W. 201, 206, this court, construing the statute, among other things, said: ‘In expressing an opinion, he should make it clear to the jury that he is merely stating his opinion, and not directing them to be guided by it. They must be given to understand that they are to decide the facts on their own view of the evidence, and that the opinion is expressed only as an aid to them in so doing. He may call the attention to the jury to particular facts; marshal and sum up the evidence relating to each issue to be determined; comment upon the tendency, force, and comparative weight of conflicting testimony bearing upon them; and point out any matter which legitimately affects the testimony of a witness or his credibility. And it is his duty to do so, under the statute, when in his opinion their consideration by the jury is necessary and will lead to a just verdict, providing always that he makes it plain to the jury that his comment and opinion on the facts is not controlling, and that the ultimate determination is left to them. The material facts in controversy, upon which there is a conflict of evidence, must not be assumed by him to have been proven. It is for the jury to say whether or not the evidence is sufficient to establish such facts, and they are the sole judges of the credibility of the witnesses and the weight of the testimony.’

The trial court in the instant case said:

‘The members of the jury are the sole judges of the facts in the case, are the sole judges of the truth or falsity of all the testimony in the case and the opinion or comment of the judge in charging the jury upon any question of fact is to be taken by the members of the jury as advisory merely. It is their full power and privilege to disagree with any such comment and disregard it. The comment of the trial judge in criminal cases on the testimony and evidence is merely advisory and you as members of the jury have full power,—and I want you to remember it carefully during the entire charge because the entire charge on the facts is subject to this. The members of the jury have full power to use their own judgment as to the facts and the testimony without regard or without necessarily following anything that the trial judge may say. * * *

‘You are the sole judges of the testimony, of the facts. You are the sole judges of the truth of the testimony. You are the sole judges of the facts of the case. But, in endeavoring to sift out...