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 |
OPINION TEXT STARTS HERE
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.
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.
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:
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:
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:
The trial court in the instant case said:
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