People v. Tunnacliff

• Citation: 375 Mich. 298,134 N.W.2d 682
• Decision Date: 10 May 1965
• Docket Number: A,No. 23,23
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Clifford TUNNACLIFF, Defendant and Appelllant. pril Term 1964.
• Court: Michigan Supreme Court

Page 682

134 N.W.2d 682

375 Mich. 298

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Clifford TUNNACLIFF, Defendant and Appelllant.

No. 23, April Term 1964.

Supreme Court of Michigan.

May 10, 1965.

Norman J. Van Epps, Sp. Pros. Atty. for Shiawassee County, Owosso, for the People, plaintiff and appellee.

Ralph B. Hoschner, Corunna, for defendant and appellant.

Before the Entire Bench.

O'HARA, Justice (concurring in the result).

I

Clifford Tunnacliff was convicted of breaking and entering in the nighttime in that he 'procured, counseled, aided and abetted in the commission of the crime of breaking and entering in the nighttime with intent to commit a felony by giving information to Mr. William Mahar on how to enter into the building known as the Eagles Club * * * in the city of Owosso.' ¹

He is aggrieved by the conviction and has appealed it. He contends that he was convicted upon testimony that was inadmissible. The testimony was by one Roy Smith who said out of the presence of defendant Tunnacliff that William Mahar told him (Smith) that he, Mahar, broke in and took some $800 from a safe in the Eagles Club.

The defendant had been a police officer in Owosso for over 25 years. His duties in part involved trying the doors of commercial establishments at night as he walked his beat. Thus he learned which were vulnerable to easy entry. He allegedly gave specific information to Mahar as to how to effect entry into the Eagles Club, in return for which he received eighty odd dollars. On the trial of the case there was read into the record Officer Tunnacliff's admission by question and answer statement to the prosecuting attorney and chief of police that he had in fact furnished the information and was so paid for it.

It is fundamental of course that it was the burden of the State to prove the commission of the crime by Mahar before Tunnacliff could be convicted of aiding in the commission thereof. It was in the course of this proof by the State that the testimony claimed by the defendant to be hearsay as to him was received. So far as the record shows Mahar was never convicted of, tried for, or even charged with the breaking and entering. However, as noted by the trial judge:

'Now the mere fact that Mr. Mahar has not been arrested or charged with this crime or convicted of the crime is of no moment in deciding the admissibility of this evidence at this time. Suppose, for example, Mr. Mahar was dead and could not be prosecuted, or suppose he was in Saudi Arabia and could not be reached by the process of this Court? Would you then argue that it would be impossible to prosecute the defendant?'

The point is well taken and admirably illustrated. The precise question is whether in this prosecution of Tunnacliff, for aiding and abetting the breaking and entering by Mahar, the alleged admissions of Mahar to Smith, even though made in the absence of Tunnacliff are admissible as bearing upon the guilt of the principal, Mahar, only. The prosecution utilized the testimony in establishing the corpus delicti of the breaking and entering by Mahar so as to lay the foundation for later alleged admissions by Tunnacliff as to his guilt of aiding and abetting.

Anticipatig the question, the able trial judge had prepared himself for its answer:

'Realizing that this question was going to be raised: realizing that perhaps it was the most important question of law involved in this lawsuit, I have spent two days in the State law library in Lansing briefing the question myself, * * *

'I think the rule is well-stated in a very late Pennsylvania case, Commonwealth v. Antonini, 165 Pa Super 501, 504, 69 A2d 436, 438, wherein it appears:

"In cases where the defendant is on trial charged with aiding and abetting a crime committed by A, the confession or declarations of A, be he living or dead, that he committed the principal crime, is evidence against the aider and abettor only to show the commission of the crime by the principal. If the declaration or confession of the principal implicates the aider and abettor, it must be separated from the declaration if possible. If not possible, it may all go in, but for the limited purpose of proving that the principal committed the crime and the jury must be instructed that it is not evidence of defendant's guilt in aiding or abetting the principal."

The trial judge scrupulously observed the restricted basis for admission and charged the jury with precision on the point as follows:

'I further charge you, members of the jury, that in regard to this claimed confession of Mahar, I advise you that confessions of a person are received as evidence of guilt upon the presumption that he will not make an untrue statement against his own interest. The evidence of verbal confessions of guilt, however, is to be received with great caution, for the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, the infirmity of memory, should all be considered by the jury, subject, however, to these cautions. In receiving and weighing them, it is generally agreed that deliberate confessions of guilt are among the most effectual proofs in the law. Their value depends on the supposition that they are deliberate and voluntary, and are on the presumption that a rational being will not make admissions prejudicial to his own interest unless when urged by the promptings of truth and conscience. The degree of credit to be given to the alleged confession is for the jury under the circumstances of the case, and the manner in which it was made. In determining what degree of credit you will give to the alleged confession, you will bear in mind that Mahar has denied the making of the same, and you will also bear in mind the factors which might motivate such denial by Mahar. In considering this alleged confession, you will also bear in mind that Smith is now in jail, charged with a most serious offense, and you will consider that he might be influenced to give such testimony in the hopes of receiving certain benefits or consideration from the enforcement officials.

'I further charge you, in connection with the alleged confession, that it was received in evidence, and this is important, members of the jury. It was received in evidence only for the purpose of proving that Mahar, the principal, committed the breaking and entering. It was not received, and I charge you that you must not consider it as any evidence of the quilt of Tunnacliff, the defendant, because Tunnacliff cannot be found guilty simply because you find that Mahar committed the alleged crime. Tunnacliff can only be convicted in this case if you find that he aided or abetted in Mahar's crime.' (Emphasis supplied.)

It is further to be noted that the rule which was reviewed in Antonini, supra, appears to be the majority rule.

The following authorities are reflective of the majority view:

'In a prosecution for aiding and abetting another in the commission of a crime, generally speaking, the prosecution may introduce against the abettor any evidence which would be admissible on the trial of the principal, including his confessions and admissions, although made when the aider or abettor was not present, and the limitations on the admission of the evidence of the acts and declarations of conspirators do not apply. However, such evidence is admissible only for the purpose of showing the guilt of the principal and is not admissible for the purpose of showing the guilt of accused.' (Emphasis supplied.) 22A C.J.S. Criminal Law § 781, p. 1185.

'That the confession of a principal is admissible, on the trial of the accessory, to evidence the commission of the crime by the principal, seems clear on the present principle, supposing some evidence of the defendant's cooperation to be first furnished.' 4 Wigmore on Evidence (3d ed), § 1079(c), p 133.

In support of the foregoing are the following: Howard v. State (1899), 109 Ga. 137, 34 S.E. 330; Millner v. State (1913), 72 Tex.Crim.R. 45, 162 S.W. 348; Millner v. State (1914), 75 Tex.Crim.R. 22, 169 S.W. 899; Gibson v. State (1908), 53 Tex.Crim.R. 349, 110 S.W. 41. Additionally, these holdings support the ruling of the trial court.

An analogous case is reported in State v. Mann (1905), 39 Wash. 144, 81 P. 561. We quote from the syllabi in 81 P., supra:

'9. Where defendant was charged with having aided and abetted his wife to commit the crime of arson, the state could prove confessions and admissions made by the wife showing her guilt, although they also implicated defendant.'

Substance of the holding of the Washington supreme court is that such statements are admissible, not to fix guilt of the defendant but rather the guilt of the alleged principal.

'In a trial on a charge of being an accomplice in a murder, it is not error to admit evidence of admissions of the principal for the purpose of establishing the principal's crime, though defendant was not present when the admissions were made.' Wilkerson v. State (Tex.Cr.App.1899), 57 S.W. 956 (Syllabus 4).

'Whatever is competent to determine the guilt of the principal is competent, for this purpose against the accessory.' Mulligan v. People (1920), 68 Colo. 17, Syllabus 4, 189 p. 5.

In effort to show guilt of relator as accomplice to a murder, an extra-judicial confession of alleged principal was admissible only for the purpose of showing principal's guilt and could not be introduced for the purpose of showing relator's guilt. Ex parte Suger (1946), 149 Tex.Cr.App. 133, 192 S.W.2d 159; McKenna v. People (1951), 124 Colo. 112, 235 P.2d 351.

The opposite rationale is discussed in Ogden v. State (1860), 12 Wis. 532, 78 Am.Dec. 754 among other cases. In a similar situation involving aiding and abetting the commission of the crime of arson, the Wisconsin court dealt with the question. Sidney Wright, the principal felon, had made his escape and no charge of arson was ever...