People v. Tutha, 139.

• Decision Date: 16 June 1936
• Docket Number: No. 139.,139.
• Citation: 276 Mich. 387,267 N.W. 867
• Parties: PEOPLE v. TUTHA.
• Court: Michigan Supreme Court

276 Mich. 387

267 N.W. 867

PEOPLE

v.TUTHA.

No. 139.

Supreme Court of Michigan.

June 16, 1936.

Chester Tutha was convicted of unlawfully driving away an automobile, and he appeals.

Affirmed.Appeal from Recorder's Court of Detroit; Christopher E. stein, judge.

Argued before the Entire Bench, except TOY, J.

Frank B. Ferguson and Frank G. Schemanske, both of Detroit, for appellant.

David H. Crowley, Atty. Gen., and Duncan C. McCrea, Pros. Atty., and A. Tom Pasieczny, Asst. Pros. Atty., both of Detroit, for the People.

POTTER, Justice.

Defendant was arrested and informed against charged with having, April 12, 1935, willfully and unlawfully and without authority, taken possession of and driven away a Hudson automobile, sedan, belonging to James H. Johnson. In a second count, he was charged with stealing, taking, and carrying away the personal property of Johnson, to wit, a Hudson automobile, sedan, as above described. No time of the commission of the offense is alleged in the second count. In the third count, defendant was charged with having, April 12, 1935, received stolen property, to wit, the automobile first above described. Upon arraignment, defendant pleaded not guilty, and his bond was fixed at $5,000. The case came on for trial May 28, 1935, and was continued until the next day, May 29, 1935, when the case was continued for trial until June 7, 1935, at which time defendant, by his counsel, moved for an adjournment because it was claimed one of defendant's material witnesses was in the marine hospital and unable to attend. No affidavit to support this motion, which was made verbally by counsel for defendant in open court, and no doctor's certificate to sustain the same were presented to the trial court. No testimony was taken or offered in support of such motion. The motion was denied, a jury impaneled and the trial began, at the conclusion of which a verdict of guilty was rendered. Defendant was sentenced and brings the case here by so-called appeal, not by writ of error.

Defendant contends the trial court should have granted his motion for an adjournment upon the day of trial, or should have granted a new trial after conviction, for the purpose of permitting defendant to produce the witness whom he claimed was confined in the hospital; the trial court should have granted a mistrial because a witness for the people stated he had been shown pictures of robbery men and safe men in the identification bureau of the police department, and he identified one of them as defendant; that the court erred in permitting the prosecuting attorney to ask defendant whether or not a friend and ‘two other fellows' who saw him in a restaurant, and others who were said to have seen him in a poolroom, were in court; that the trial court erred in his charge to the jury, and in further charging the jury after further instructions had been requested; that the trial court erred in denying defendant's motion for a new trial because of alleged misconduct of the court officer and of the jury; and the trial court erred in denying defendant's motion for a new trial because the verdict was against the great weight of the evidence.

The proofs upon which defendant was convicted are substantially that James H. Johnson, the owner of a Hudson sedan, at about 7:30 o'clock in the evening, April 12, 1935, parked the same on Scovel avenue, Detroit, Mich., and returned about 11:30 p. m. and his automobile was gone. He testified he had given no one permission to drive it away. Three police officers in the city of Detroit, while driving a scout car on April 25, 1935, at 4:30 a. m. noticed an automobile going through a red light. They overtook it and discovered it had a license plate wired on of a particular number. They checked this number against the license plates of automobiles reported stolen, ascertained the license number was that of an automobile reported stolen, pulled alongside it and told the deiver to pull to the curb. The driver of the automobile, thus hailed, looked around, swore, and drove rapidly away. The officers in the scout car started shooting at the fleeing automobile, and a gun battle ensued in which nobody was hurt. The automobile was found about two hours later abandoned. Johnson, its owner, identified the automobile as his. After the automobile and the occupants thereof got away on April 25th, the police officers went to police headquarters, examined some photographs, identified the defendant as the person driving the car, and later he was arrested and convicted.

1. Adam Ostrowski, a brother-in-law of defendant, is said to have conducted a Chrysler-Plymouth salesroom in Hamtramck, and lived in the same house with defendant. He was relied upon by defendant as an alibi witness and was confined in the hospital at the time the trial came on, having been operated on for appendicitis. Ostrowski filed an affidavit, attached to defendant's application for new trial, stating ‘that on June 6th, he was taken to the Marine Hospital for an acute appendectomy operation.’ Dr. J. H. Linson, the medical officer in charge of the marine hospital, in his affidavit, attached to defendant's application for a new trial, says ‘that Adam Ostrowski of 8935 Lumpkin avenue, was confined to the Marine Hospital from 1st day of June, 1935 to 22nd day of June, 1935.’ If Ostrowski was in the hospital as the medical officer says, from June 1st to June 7th, defendant had ample time to make application for continuance and obtain the certificate of the physician or an affidavit of his being in the hospital. The matter of granting defendant's motion for a new trial, unsupported by any proofs, was a matter in the sound judgment and discretion of the trial court. We do not find he abused that discretion or that he erred in refusing to grant a new trial because of the absence of this witness.

It is claimed the defendant gave notice he would rely upon an alibi. There is nothing in the record which indicates this, and the calendar entries attached to the record do not indicate any such notice was ever filed.

2. When officer Peitz was on the stand, he testified:

‘We went down to Police Headquarters that next morning, around 8:30 or 9:00 o'clock. We went to the identification bureau.

‘Q. Did you identify the driver of the car? A. We asked for photographs and they showed us pictures of robbery men and safe men.

‘Mr. Kennedy: Wait a minute, I ask that be stricken. I ask that the jury be instructed to disregard it.

‘The Court: The jury will be instructed to disregard it.

‘Mr. Kennedy: I also move for a mistrial.

‘The Court: Deny the motion.’

The claim this was error is also made one of the bases for defendant's motion for a new trial.

A voluntary and irresponsive answer to a proper question is not error. Hill v. Robinson, 23 Mich. 24;People v. Wilson, 133 Mich. 517, 95 N.W. 536.

‘When a witness for any reason gives an irresponsive answer and which is not competent evidence, and the answer is suppressed at once, the case must be a very peculiar and very strong one which would justify a reversal for such fault or mistake of the witness.’ Hill v. Robinson, 23 Mich. 24.

‘A witness cannot put error into a case by an unauthorized remark, neither called out by a question nor sanctioned by the judge; and if what he does or says improperly is likely to do much mischief, it is presumed the judge will apply the proper corrective in his instructions if requested to do so. In this case he applied it on the instant, so far as ruling out the improper statement could do so; and no doubt he would have given specific caution to the jury if requested.’ People v. Mead, 50 Mich. 228, 15 N.W. 95, 96.

In People v. Rozewicz, 228 Mich. 231, 199 N.W. 632, 633, it is said: ‘Defendant's counsel contend that striking the irresponsive and claimed prejudicial answer from the record could not eradicate its damagaging effect from the minds of the jury and the ruling that the trial proceed ‘forced defendant to take the stand to show the character of the offense for which he had been convicted.’ The irresponsive answer which the court of its own motion struck out did not show that respondent was ever convicted of any offense. He voluntarily took the stand as a witness in his own behalf, not to show the character of the offense of which he had been convicted, but to show that he was not guilty of the offense with which he was charged.'

This assignment of error is not well taken.

3. Defendant took the stand as a witness in his own behalf. He testified he was, in the early morning of April 25, 1935, not in the vicinity where the officers accosted the driver of the automobile in question, but was attending a party at which several people were present; that he got up early in the morning the next day and met at a restaurant a man named Kapuschenski. He also testified he had been in other places where he met other individuals and the prosecuting attorney asked him if Kapuschenski was in court. Defendant also claimed he could establish his alibi by his brother-in-law who, the record indicates, was in the hospital. He was asked if his brother-in-law was in court. He claimed he could establish his alibi by his sister, and he was asked if she was in court. He claimed he could establish his alibi by his mother, and he was asked if she was in court. This is alleged to have been error. It is contended the prosecuting attorney may not comment on the failure to call witnesses to sustain the defendant's character; that it...