People v. Van Wie

• Decision Date: 22 April 1969
• Docket Number: No. 3,Docket No. 4982,3
• Citation: 17 Mich.App. 77,169 N.W.2d 160
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Duane Gordon VAN WIE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 160

169 N.W.2d 160

17 Mich.App. 77

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Duane Gordon VAN WIE, Defendant-Appellant.

Docket No. 4982.

Court of Appeals of Michigan, Division No. 3.

April 22, 1969.

Released for Publication July 24, 1969.

David L. Smith, Raidle & Smith, Charlotte, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Richard M. Bauer, Pros. Atty., Barry County, Hastings, for plaintiff-appellee.

Before LEVIN, P.J., and HOLBROOK and DANHOF, JJ.

PER CURIAM.

The defendant Duane Gordon Van Wie appeals from his conviction by a jury of the crime of larceny from a motor vehicle. M.C.L.A. § 750.356a (Stat.Ann.1954 Rev. § 28.588(1)).

Dexter Tobias testified that he, his cousin, Lawrence (Toby) Tobias, and the defendant were out riding in the defendant's automobile and that they stopped near a truck belonging to the owner of the stolen property. He further testified that he was told that Toby removed 2 pairs of work gloves and the defendant took a battery from the truck. Subsequently, according to Dexter, the battery was thrown away.

A State trooper, Orrin J. Smith, who was assigned to investigate the crime, found the work gloves in the defendant's automobile. Lawrence Williams, who was present while Trooper Smith was examining the defendant's automobile, testified as follows:

'Q. All right. Go on.

'A. And so we went back to the car. Okay, when we got back to this car, after the glove situation, we know it was there--there was a hunting knife.

'A. Now, what was there? I didn't get your remark.

'A. I said, this glove situation. Well now, we are back to the car here. Trooper Smith and I and Duane (the defendant) had went to this car.

'Okay. And on this floor laid a hunting knife, as of which Trooper Smith gave him heck. And he said, 'Now, lookit, you being a 'con' should not have this knife is your possession.'

'Q. You being a what?

'A. 'Con'--Right or wrong.'

Thereupon the defendant's counsel objected and moved for a mistrial. The mistrial was denied and the jury instructed to disregard the foregoing testimony in its deliberations.

Earlier in the trial, the fact that the defendant had a knife in the car was brought out during Dexter's testimony. He testified that after the alleged crime was committed he, Toby and the defendant encountered '6 guys' in a car who menaced them. According to Dexter the defendant took a knife in hand to defend himself against a possible assault. This testimony was also objected to but was allowed to stand.

Dexter's testimony was contradicted by Toby who testified that he stole the work gloves and that he and his cousin Dexter took the battery, and that the defendant was not present at the time these articles were stolen.

Toby's exculpatory testimony was anticipated by the prosecutor. During the course of Dexter's testimony the prosecutor brought out over the defendant's objection an encounter between Dexter and Joseph Williams, a relative of both the defendant and Toby. According to Dexter, Joseph Williams beat up Dexter because Dexter would not go along with an 'idea' of Joseph Williams.

The prosecutor's purpose was to suggest that the defendant had procured the beating up of the witness Dexter in order to intimidate him and prevent him from testifying against the defendant and to imply that Toby...