People v. Wallin
| Decision Date | 07 January 1885 |
| Citation | 22 N.W. 15,55 Mich. 497 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. WALLIN. |
Error to Saginaw.
J.J. Van Riper, for plaintiff.
Camp & Brooks and Wisner & Draper, for defendant and appellant.
Wallin and Isdell were informed against for the robbery of one Rutan of a sum of money. The robbery was alleged to have taken place in the saloon of defendant Wallin, in East Saginaw late in the evening of November 1, 1883. Isdell pleaded guilty to the information, and Wallin was tried separately. Rutan, it appears, accompanied by one Burras, had gone to East Saginaw on the day of the robbery to transact business at the United States land-office. After concluding the business the two had a lunch at a restaurant, and Rutan drank beer more than once in the course of the afternoon. At 6 o'clock Burras took the cars of the Detroit & Bay City Railroad Company for home. Rutan remained, intending to take the train of the Jackson, Lansing & Saginaw Railroad, going north on the west side of the river at 9 o'clock the same evening. He crossed the river to take that train, but was late in reaching the station, and the train was gone. He re-crossed the river to East Saginaw, and entered Wallin's saloon. Rutan's evidence is that he entered no other saloon previous to entering Wallin's after his return from the west side of the river; but the defense put in testimony that he drank beer at Wallin's early in the evening, and also that he was in a place kept by one Stabback, where he both drank and played cards until he left to take the cars. It is agreed on all sides however, that Rutan was in Wallin's after 9 o'clock on his return from the station. Rutan testifies that when he found he was late for the cars he went into Wallin's to inquire for some place to pass the night. He found Isdell behind the bar, and asked him about lodgings. Isdell told him they did not keep lodgers, but he would show him where he could find lodgings. Isdell proposed that they should throw dice for the drinks before going, to which Rutan assented. Another man was standing there, who Rutan was satisfied was Wallin. Isdell introduced Rutan to him as a lumberman, and they shook hands together, and then the three threw dice together. After the game was finished they all drank. Rutan then turned around and put his left hand upon the screens standing near, when Wallin caught hold his arm and said, "You are not going to get away in this way," or something to that effect. Rutan made excuse that he wanted to go to the water closet at the other end of the room, and started to go there. Just as he reached the water closet Wallin caught hold of both his arms near the elbow, while Isdell threw his hand around his neck, put one hand over his mouth, took his pocket-book from his pocket with the other, took out the money and then put back the pocket-book. Wallin was holding him all the time. After all this occurred they let him go from the saloon. He was greatly in fear, and ran off as fast as he could until he met policemen, to whom he told the story. Rutan, while he and the others were shaking dice in the saloon, noticed another man come in, but the two who shook dice with him were the men who robbed him.
The defense did not contest the fact of the robbery, nor of Isdell's connection with it; but their theory of the case was that the other guilty party was one Howard. The question of fact on the trial, therefore, resolved itself into a question of identity; the prosecution contending that Wallin was the associate of Isdell in the robbery, while the defense insisted it was Howard. Rutan's evidence, fixing the crime upon Wallin, was corroborated by one Tilloch, a policeman, who testified to seeing Isdell, Rutan, and another, who he believed to be Wallin, throwing dice together, and also by Isdell, who swore positively that Wallin was the person who held Rutan while the witness robbed him. On the other hand, Wallin testified that he had been lying down and asleep in a back dining-room until near 11 o'clock, which was after the hour of the robbery. When he got up and went into the saloon Isdell and Howard were there, but both soon went out. Rutan afterwards came into the saloon with a policeman, and said it was there he had been robbed. This testimony as to his whereabouts the forepart of the evening was corroborated by other witnesses.
The defense also produced evidence that Howard was in Wallin's saloon in the evening, throwing dice with Isdell and Rutan. The next morning Isdell and Wallin were arrested, and Wallin then went to see Howard. He did not find him, but left word for Howard to come and see him, which he did. Wallin says he told Howard, Rutan claimed to have been robbed in the saloon. Howard said he wasn't robbed that he knew anything about; that he shook dice with him for money, but did not say for how much. Wallin said: "He claims he was robbed, and takes me for you." Howard responded: "What am I going to do about it?" Wallin said: "We are arrested, and you know I never shook dice that night." Howard then said: "What are you going to do about it?" And Wallin responded: Howard said: "What would you do?" And Wallin replied: "I don't know anything about what you did, or anything about it, and I don't propose to know." The next he heard Howard was gone, and he was unable to find him. Howard's story was that he only stepped into Wallin's for a moment after half past 10 in the evening; that Wallin was counting over some money, and Isdell stood by him; that he got a drink of Isdell and then left; that subsequently he went to see Wallin, in response to a request sent him, and Wallin took out $30 and gave him, and told him to keep mum, and that he had better go away for awhile, which he promised to do. That afternoon or evening he saw Wallin again, who inquired if he was not gone yet, and said he might as well go then as any time, if he was going; and Howard did then go, first to Alpena and then to Cheboygan, where he was arrested and brought back.
When the witness Tilloch was on the stand he was asked the question: "Is there any doubt existing in your mind that the man you saw standing at the right-hand side of Rutan, at the time when you looked through, was this defendant Wallin?" The question was objected to as incompetent. It sought to bring out, it is said, not what the witness saw at the time and the impression then made, but the conclusion to which he had subsequently arrived. This conclusion might depend much upon the character of the witness. With one person the impression might strengthen until it became a certainty in the mind; with another, reflection might remove it. But, while this may be true, we think the question unobjectionable. The witness had testified that he thought the man he saw was Wallin. If he, when testifying, had any doubts of the identity, it was proper to ascertain the fact; if he had none, the grounds of his belief might be inquired into. The jury were entitled to know what the witness knew respecting the identity, and how positive his knowledge was. If he was speaking doubtfully they should know it, and if with confidence it was proper they should know the grounds of his confidence. Tilloch was also permitted to testify that Rutan, the next day, pointed out Wallin to him and said he was one of the parties who robbed him, the remark not being made in Wallin's presence. This is assigned for error. But the fact that Wallin was not within hearing is of no importance. The statement was no evidence of Wallin's guilt; it was only a...
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