People v. Utter

• Citation: 176 N.W. 424,209 Mich. 214
• Decision Date: 27 February 1920
• Docket Number: No. 102.,102.
• Parties: PEOPLE v. UTTER.
• Court: Supreme Court of Michigan

209 Mich. 214

176 N.W. 424

PEOPLE

v.UTTER.

No. 102.

Supreme Court of Michigan.

Feb. 27, 1920.

Error to Circuit Court, Ionia County; Frank D. M. Davis, Judge.

Warren Utter was convicted of murder in the first degree, and brings error. Reversed, and new trial granted.

Argued before MOORE, C. J., and STEERE, BROOKE, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ. W. J. Barnard, of Paw Paw (Earl L. Burhans, of Paw Paw, of counsel), for appellant.

J. Clyde Watt, Pros. Atty., of Ionia, and Alex J. Groesbeck, Atty. Gen., for the People.

STONE, J.

The defendant and appellant, and James Edward Ward and Charles Ward, were, on January 3, 1919, arrested on a warrant charging them with the murder of one John Smary, at the city of Ionia, in Ionia county. They were charged with having assaulted said Smary with a deadly weapson on the 25th day of November, 1918, at the city of Ionia aforesaid, for the purpose of committing the crime of robbery upon the said John Smary, and that the said Smary died from the effects of said assault on the 29th day of November, 1918. All of the defendants waived an examination and were held to the circuit court for trial.

On January 4, 1919, an information was filed in the circuit court charging all of the defendants with murder in the manner above stated. On the same day Frank C. Miller, an attorney of that court, was, by order of the court appointed amicus curiae in said cause, and as counsel for the defendants. Upon the arraignment of the defendants they all entered a plea of not guilty. Then the following occurred:

The Court: ‘Come into my room and I will talk with you.’

Whereupon the judge and James Edward Ward retired to the judge's chambers for a time and then returned into court.

The Court: ‘Charles Ward and Warren Utter, you may come into my room.’

Whereupon the judge, Charles Ward, and Warren Utter retired to the judge's chambers for a time, and then returned into court. Whereupon the following occurred:

The Court: ‘Charles Ward and Warren Utter after consultation with the court and F. C. Miller, who has been appointed to look after their interests, and discuss the matter freely, have informed the court that they want to change their plea of not guilty to a plea of guilty. Is that right?’

The defendant then answered: ‘Yes, sir.’

The Court: ‘You understand it fully now?’

Defendant: ‘Yes, sir.’

The Court: ‘That is all for you boys now. Mr. Miller thinks in behalf of these young men he should insist on the examination of the witnesses that will be offered here. We will proceed with the testimony that will have to be taken.’

Whereupon the court proceeded to take testimony of numerous witnesses to determine the degree of the crime. Among other witnesses called and sworn was his defendant. His testimony is very lengthy and went into the details of the robbery and the circumstances surrounding it. He testified that he did not strike the blow, and took, as he claimed, no active part in the assault. He testified, however, to a division of the money among the three defendants after the robbery, in which he stated that the received $45 in currency, and there was to be a further division when a $10 bill could be broken. The defendant, and also his codefendants, made a written statement on the 31st day of December, 1918, in the nature of a confession, which was introduced in evidence upon this examination. This testimony of the defendant is too lengthy to be here inserted. It is sufficient to say that during his examination the following occurred:

‘Q. Any further statement you want to make now? Do you want to say anything further? A. Yes, sir.

‘Q. State anything you wish now in connection with this. A. I would like to have this-like to state that-I don't know just how to word it.

‘Q. Take your time, put it in your own language. A. I am not guilty, I want to-and trial, I would like one.

‘Q. You say the statements made by Charles and Ed. Ward are not true; that is, as to the part you took in the transaction? A. No, sir; they are not.’

After the prosecuting attorney and Mr. Miller and completed the examination of the defendant, the following examination occurred by the court, in the public examination:

‘Q. After you came into court this morning, you and Charley had a talk with me, didn't you? A. Yes, sir.

‘Q. You stated to me you didn't understand much that was read by the prosecuting attorney, it was so long? A. No, sir; I didn't understand it.

‘Q. I explained to you, didn't I, in detail that you were charged with assaulting and robbing the old man, Smary, and that in making that assault and in committing the robbery that you killed him. I explained it to you substantially that way? A. This what explains-I didn't get it through my head that way. You were talking to Charley.

‘Q. I was talking to each one of you-didn't I? A. Yes, sir.

‘Q. Do you remember Charley making the statement there to me all about this transaction? A. I heard him, yes.

‘Q. Did you make a statement to me of your part of the transaction? A. I don't know whether I did or not.

‘Q. And came back into court and pleaded guilty after making that statement talking to me? A. No, I don't think I pleaded guilty.

‘Q. Did I call you to the desk and ask you if that was your desire to change your plea, in the presence of the officers of the court? A. I got it through my head, change your plea and change it the other way for then.

‘Q. You had already pleaded not guilty? A. I pleaded not guilty; yes, sir.

‘Q. After coming out from my room where I talked with you and Charley together, you requested that you plea be changed to that of guilty, didn't you? You so announced it in open court? By myself you were asked if it was your desire, is that true, up in front of the desk there? A. When we spoke of changing my plea the way--

‘Q. You were up in front of the desk? A. Yes, sir.

‘Q. What did you say when I asked you if that was your wish? A. I didn't say anything.

‘Q. Do you remember my having it noted upon the books that was your desire, that you assented to it, said yes? A. No, I don't.

‘Q. Do you remember what Charley's statement was there to me in your presence this forenoon? A. No, I couldn't tell you.

‘Q. You don't know whether it was the same, in substance, he has testified to on the stand? A. No, I couldn't swear to it.

‘Q. Do you remember saying this to me, that you were willing to plead guilty to the robbery, that you didn't intend to do any killing when you went there? Do you remember saying that to me? A. No.

‘Q. And I said it didn't make any difference about whether you intended to kill him or not if you actually did in committing another crime, do you remember my telling you that? A. Yes, I remember your telling me something about that. I told you I couldn't get it through my head if you spoke that way.

‘Q. Do you remember my asking you if you went up there with them, with these two young men? A. Yes, sir.

‘Q. Do you remember my asking you if you knew he had a club with him? A. No.

‘Q. You don't? A. No, sir; I don't.

‘Q. What did you say when I asked you if you went up there with them? A. I said I went up there with them; I can remember that much.

‘Q. Did I ask you if you were present when this thing was done, and you said you hid behind the bushes until it was over? A. No, I don't remember it.

‘Q. Don't remember it? A. No, sir.

‘Q. Didn't I tell you at that time much depended upon your statement of the matter, that all I wanted was the truth from you two boys? A. Yes, sir; I remember you spoke of the truth, that you wanted the truth.

‘Q. I explained the matter to you in all detail, didn't I? Told you Mr. Miller had been appointed by the court to see that you had fair play and justice here? A. Yes, I remember you told me about Miller.

‘Q. And I called Mr. Miller in there to talk with you further? A. Yes, sir.

‘Q. I went out of the room and left you to talk with him in regard to this matter. Did you state to him you desired to change your plea then, from not guilty to guilty? A. No.

‘Q. You came out here and so announced to the court? A. He came out here something about changing their plea, but I didn't get it through my head the words he spoke-want to change your plea-I supposed it was changed the other way.

‘Q. You heard the words ‘not guilty’ changed to ‘guilty’? (No response.)

‘Q. You knew what not guilty was when you stood up before the desk? A. Yes, sir.

‘Q. Did you know what ‘guilty’ meant? A. Yes, sir.

‘Q. Leaving that word ‘not’ off, you knew what is meant to change from one to the other, didn't you? Did you understand what it was to change from not guilty? A. No, I don't just understand.

‘Q. Do you remember I said to you if you came in her and pleaded guilty, after the testimony was taken and I found your plea was made intelligently and according to the testimony, what the penalty would have to be, and to be very careful about making any change in your plea, that the sentence would have to be for life and you must do so understandingly; do you remember that? A. No, I don't remember that.

‘That is all.’

Then the following occurred:

The Court: ‘Anything further to say, Mr. Utter, anything further to say about this matter, why sentence should not be pronounced now?’

Mr. Utter: ‘Yes, sir.’

The Court: ‘What more have you to say?’

Mr. Utter: ‘I am not guilty. I want to hear (what) law is according to what Mr. Miller said, I would like to have a jury, or a trial, or--’

The court then proceeded to sentence the Wards to imprisonment in the branch prison at Marquette for life. Whereupon the court said:

‘In your case, Mr. Utter, the case will stand continued until Monday morning (this being Saturday).’

Thereafter, and on Monday, the 6th day of January, the court proceeded to sentence this defendant. During the course of its remarks the court said, alluding to what had occurred before:

‘The statement you then made to me was that the statements made by the other boys were true?’

Mr. Utter: ‘I told you plainly and...