People v. Zabijak

• Decision Date: 10 June 1938
• Docket Number: No. 116.,116.
• Citation: 285 Mich. 164,280 N.W. 149
• Parties: PEOPLE v. ZABIJAK.
• Court: Michigan Supreme Court

285 Mich. 164

280 N.W. 149

PEOPLE

v.ZABIJAK.

No. 116.

Supreme Court of Michigan.

June 10, 1938.

Joseph Zabijak was convicted of first-degree murder, and he appeals.

Judgment reversed and new trial ordered.Appeal from Circuit Court, Genesee County; James S. Parker, judge.

Argued before the Entire Bench.

Ralph M. Freeman, of Flint, for appellant.

Joseph R. Joseph, Pros. Atty., of Flint, for the People.

McALLISTER, Justice.

On the afternoon of December 3, 1918, defendant, Joseph Zabijak, a married man who did not live with his wife, went to her home and after locking the door, confronted her with a gun and told her that he was going to kill her. His wife, with their baby in her arms, ran to another room where defendant pushed her on the bed, and while she was still holding the baby in her arms, shot three times, killing the baby and shooting his wife through the mouth. He then walked directly to the house of his mother-in-law, Louise Michalik, who lived about a block away on the same street, and shot and killed her. Defendant then walked to All Saints' Church, about three blocks from where his mother-in-law lived, where he got behind the cross in front of the church and tried to kill himself by discharging the gun in his mouth. He was apprehended, confined in a hospital and charged with first degree murder for the killing of his mother-in-law. On being released from the hospital, he was arraigned in circuit court at which time a plea of not guilty was entered, and an attorney was appointed to defend him.

On petition of his counsel, the court appointed a sanity commission, which on February 21, 1919, adjudged the defendant insane, and ordered him removed to the State hospital for the criminal insane at Ionia. He was confined to the insane hospital for fifteen years, except for a period when he escaped, and was returned to Genesee county in September, 1934. A sanity commission was again appointed and after an examination of defendant, concluded on December 20, 1934 that he was sane. On December 24, 1934, the prosecuting attorney went before the court and moved to dismiss the information against the respondent on the ground that all of the evidence available to the prosecutor indicated beyond a question that the defendant was insane at the time the homicides were committed. The court, however, after questioning the defendant denied the motion. Counsel was appointed for defendant and the case came on for trial, the defendant pleading insanity as a defense. He was convicted of first degree murder July 7, 1935, and was sentenced to life imprisonment. He appeals from such conviction.

There had been marital difficulties between defendant and his wife. On the day of the killing, she had been in court to get a divorce. Defendant had accused his mother-in-law of being responsible for his troubles. Many witnesses were sworn who testified as to his queer and peculiar conduct before the killings.

Indorsed on the information was the name of Edward Conley, who was a police officer at the time of the homicides, as well as at the time of the trial. Prior to resting the case for the People, the prosecuting attorney announced that he had been informed that Conley was in Ohio, and in response to defendant's counsel, stated that Conley could return by the next morning, during the trial of the case. Defendant's counsel emphasized at the time that it was vital to have Conley present. As his last witness the prosecutor called a deputy sheriff who testified that he tried to serve a subpoena on Conley on Saturday before the trial started. The commencement of trial was on Monday. Conley was on his vacation at the time in Ohio. A telephone call was made but he couldn't be located; and he did not appear as a witness in the case. Defendant alleges that he should have been produced in court and that failure by the People so to produce him, constituted reversible error.

Conley's testimony on the trial would have related to a material and important fact. According to the affidavit of Conley, which was made a part of defendant's motion for a new trial, he had been called to defendant's home by the brother-in-law of defendant four or five weeks before the homicides. On arrival, he found defendant in bed covered up, and observed a number of whiskey bottles in the room. On removing defendant from the bed, Conley noticed a slight wound about the size of a .22 caliber bullet on defendant's breast bone. On looking over the bed a small caliber revolver was found. Conley observed the defendant while he was in bed and noticed that his eyes were starey and glassy. It was impossible to have an intelligent conversation with him, and from his observations, Conley believed the defendant to be insane. Upon bringing the defendant to police headquarters, Conley advised his superior officer, Captain Gilbert, that he believed the prisoner was insane and that if permitted to run at large, he would kill someone. The Captain replied that he did not know what they could do about it. Defendant was later released from jail. After the killings, Conley again went to his superior and remainded him that he had previously told him that the man was insane. Conley further stated in his affidavit that he had related the foregoing facts to the prosecuting attorney before the trial of the case, and advised the prosecutor that it was his opinion from his long experience as a police officer that the defendant had been insane before the alleged murder.

It is obvious that Conley's testimony as a witness on behalf of defendant would be of transcendent significance. It is admitted that defendant was insane shortly after the homicides, and, by proper legal determination, was confined in the hospital for criminal insane. After his release from the insane hospital, he was tried and convicted on the ground that he was not insane on December 3, 1918, the day of the killings. Conley's testimony that, in his opinion, defendant was insane a month before this time would be important and would supply a substantial basis from which inferences could be drawn that defendant was insane at the time he shot his mother-in-law.

It is provided by Comp.Laws 1929, § 17254, as follows:

‘All information shall be filed during term in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate by the prosecuting attorney of the county as informant; he shall subscribe his name thereto, and indorse thereon the names of the witnesses known to him at the time of filing the same. Names of other witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.’

Due diligence must be shown by the prosecutor to produce witnesses whose names are endorsed on the information, and where they are material witnesses, it is the duty of the prosecutor to have subpoenas issued, and use other means at hand to have the witnesses present at the trial. People v. VanVorce, 240 Mich. 75, 215 N.W. 5.

The fact that the name of a witness is endorsed on the information does not involve any necessary obligation to do more than have the witness in court ready to be examined, but in cases of homicide where witnesses can give direct evidence on any material branch of the crime alleged, such witnesses should always be called, except, possibly, where they are too numerous. Wellar v. People, 30 Mich. 16. If the prosecutor endorses the name of such witness, he must have him in court but need not call him as a witness. People v. Lummis, 260 Mich. 170, 173, 244 N.W. 438.

‘A defendant has the right to rely on the fact that such a witness will be present. If his counsel announced that he desires to examine him, the prosecution should call him to the stand, thus evidencing the fact that he has performed his duty in that respect.’ People v. Lummis, supra.

‘It is the duty of the prosecuting attorney to furnish all the evidence within his power bearing upon the issue of guilt or innocence, in relation to the main issue, or to give some good excuse for not doing so.’ People v. Swetland, 77 Mich. 53, 57, 43 N.W. 779, 780.

‘The rule that the prosecution must indorse and call all the eyewitnesses to a crime of violence who are available, except when they are numerous and those not called obviously would be merely cumulative, although rejected or materially modified in most or all other American jurisdictions, 16 Ann.Cas. 918, note; 16 C.J. p. 846; 2 Michie on Homicide, p. 1362, is too well established in this state to need the citation of authorities.’ People v. Raider, 256 Mich. 131, 132, 134, 239 N.W. 387, 389.

Whether defendant was insane prior to the homicides as well as thereafter was a material element in the offense charged.

‘The defendant was on trial for murder. Murder is said to be committed when a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied. 3 Coke Inst., 47; 4 Bl.Com., 195; 2 Chit.Cr.L., 724. There are the ingredients of the offense; the unlawful killing, by a person of sound mind and with malice; or to state them more concisely, the killing with criminal intent; for there can be no criminal intent when the mental condition of the party accused is such that he is incapable of forming one.’ People v. Garbutt, 17 Mich. 9, 21,97 Am.Dec. 162.

The failure of the prosecuting attorney to exercise due diligence to have Edward Conley present at the trial after his name had been indorsed upon the information and after it had appeared that he was a material witness on the question of defendant's insanity prior to the homicides was reversible error.

On the trial, Louis Borkowski, who was defendant's wife at the time of the alleged murder, was sworn as a witness for the People and testified that defendant had come to her home and had told her that she was ‘going to get killed.’ She...