People v. Warner

• Decision Date: 06 July 1939
• Docket Number: No. 107.,107.
• Citation: 289 Mich. 516,286 N.W. 811
• Parties: PEOPLE v. WARNER.
• Court: Michigan Supreme Court

289 Mich. 516

286 N.W. 811

PEOPLE

v.WARNER.

No. 107.

Supreme Court of Michigan.

July 6, 1939.

Frank E. Warner was convicted of assault with intent to do great bodily harm, and he appeals.

Reversed and new trial granted.Appeal from Circuit Court, St. Joseph County; Theo T. Jacobs, judge.

Argued before the Entire Bench.

J. Paul Wait, of Sturgis, for appellant.

Thomas Read, Atty. Gen., Edmund E. Shepherd, Asst. Atty. Gen., and Dwight M. Britton, Pros. Atty., of Sturgis, for the People.

WIEST, Justice.

I find reversible error.

The record shows that the jury retired at 11:45 a. m. to consider the verdict, returned into court at 3:55 p. m. and received further instruction, returned again at 4:45 p. m. and received additional instruction, returned again at 11 p. m., and then the following occurred in the absence of defendant and his counsel:

‘The Court: Members of the jury, the question that you ask the court, the court will consider confidential. No one knows the contents of your question but you and myself, and the question will be filed with the clerk, then it becomes public property. The reason that I do not divulge the question at this time is because it would show the extent of your deliberations. The answer is ‘yes'. You may retire.’

Ten minutes later the jury returned a verdict of guilty, as charged, with recommendation of leniency. The record discloses that the question by the jury was as follows: ‘The jury wants to know if a verdict may be accompanied by recommendation of leniency.’

Defendant's assignment of error No. 15, is as follows: ‘The court erred in receiving a message from the jury without making known the contents thereof to defendant and his attorney, and in answering ‘yes' to said message now known and attached to bill of exceptions as a certified copy, without explaining the law to the jury that the court alone had the duty of sentencing any defendant.’

In his brief counsel for defendant argue the point as follows: ‘Our assignment No. 15, also points out what we feel to have been a grievous error, when the court received a message without making known its contents, but in answering ‘yes' to same, said message being what we now know to have been the question: ‘The jury wants to know if a verdict may be accompanied by a recommendation of leniency,’ this being set forth in the clerk's certified copy in the Record on page 132. Without the judge making this question known, and without explaining that the court alone had the responsibility of sentencing the defendant, it makes it look like a promise to them that leniency would be given, * * *.'

So the point is before us for consideration and determination.

The jury should have been instructed that they had nothing to do with the matter of sentence, and the court was in error in extending to the jury the right to consider, in rendering a verdict, a recommendation of leniency as to the consequences. That this operated upon the minds of the jury to the detriment of the defendant is apparent from the fact that, within ten minutes, a verdict of guilty was rendered and incorporated therein a recommendation of leniency. The jury must have understood that such recommendation would be considered.

In State v. Kernan, 154 Iowa 672, 135 N.W. 362, 363, 40 L.R.A.,N.S., 239, it was said:

‘The cause had been submitted to the jury, and, after being out all night, that body came into court, and, in the absence of defendant, stated that they had failed to agree and wanted to know if they could make a recommendation to the court. Thereupon the court informed them that ‘while it is not usual, and some of the judges objected to a recommendation, it didn't, and they might do so, and he would consider such recommendation.’ The jury then retired and on the same day returned a verdict of guilty, and recommended ‘the clemency of the court and that the sentence be made as light as possible.’ Though doubtless not so intended, what occurred was well...