Ulrich v. People

• Citation: 39 Mich. 245
• Court: Supreme Court of Michigan
• Decision Date: 09 October 1878
• Parties: Michael Ulrich v. The People

39 Mich. 245

Michael Ulrich v. The People

Supreme Court of Michigan

October 9, 1878

Submitted June 19, 1878

Error to Saginaw.

Information for rape. Respondent was convicted of an assault with intent to commit rape.

Judgment affirmed.

John McArthur, Wm. H. Sweet and Wm. A. Clark for plaintiff in error. The prosecuting attorney must act impartially Meister v. People, 31 Mich. 104; Wellar v People, 30 Mich. 24; Hurd v. People, 25 Mich 406; an opinion as to guilt should disqualify a juror, People v. Rathburn, 21 Wend. 509; People v. Boughton, 1 Edm. (N. Y.), 140; in a prosecution for rape, evidence of the particulars of a complaint made by the victim to a witness is inadmissible, Archibald Crim. Pr. & Pl., 169; 3 Starkie's Ev., 951; Whart. Amer. Crim. Law, § 665; 1 Phil. Ev., 184; 1 East P. C., 444-5; 1 Hale P. C., 633; 2 Russ. on Crimes, 751; 1 Greenl. Ev., § 102; 3 id., § 213; Reg. v. Osborne, C. & M., 622; Rex v. Megson, 9 C. & P., 420; Stephen v. State, 11 Ga. 225; Pleasant v. State, 15 Ark. 624; Johnson v. State, 17 Ohio 593; Regina v. Walker, 2 M. & R., 212; a confession drawn from an accused person by giving him hopes of help is not voluntary, Rex v. Kingston, 4 C. & P., 387; Rex v. Dennie, id., 483; State v. Phelps, 11 Vt. 116; Boyd v. State, 2 Humph. 39; Rex v. Walkley, 6 C. & P., 175; Rex v. Mills, id., 146; Rex v. Thomas, id., 353; Reg. v. Ann Hearn, 1 C. & M., 109; Reg. v. Sarah Taylor, 8 C. & P., 733; People v. McMahon, 15 N. Y., 384: Phillips v. People, 57 Barb. 363; 1 Phil. Ev., 546; and if the suggestion was made in the presence of the officer who arrested the accused and by one who helped arrest him, it should be excluded for that reason, State v. Carr, 37 Vt. 19; Rex v. Shaw, 6 C. & P., 372; Reg. v. Laugher, 2 C. & K., 225; 2 Russ on Crimes, 838; the testimony of the injured party should be carefully scrutinized, People v. Hulse, 3 Hill 309; conviction for rape requires evidence that the girl made the utmost resistance and showed the utmost reluctance in her power, Strang v. People, 24 Mich. 1; Don Moran v. People, 25 Mich. 356; People v. Lynch, 29 Mich. 274; De Foe v. People, 22 Mich. 224; People v. Morrison, 1 Park. Cr. Rep., 625; People v. Abbot, 19 Wend. 192.

Attorney General Otto Kirchner for the People.

OPINION

Marston, J.

The respondent was convicted of an assault with intent to commit the crime of rape, and sentenced to the State House of Correction at Ionia. Errors are alleged to the rulings and charge of the court, which will be considered in order, so far as deemed important.

First. When the case was called for trial and before the jury was sworn, the prosecuting attorney stated to the court that he desired to have his partner assist him in the trial, alleging as a reason therefor, that having been steadily engaged for some ten or eleven days in the trial of causes, and on account of the large number of witnesses to be examined in this case, he did not feel equal to the task. An objection was interposed by counsel for the respondent, unless the prosecuting attorney would "step out of the case and leave it," or would inform the court that he was unable to conduct the trial, and would therefore substitute his partner in his stead. This was not done. The prosecuting attorney remained in the case. It is also said that counsel who assisted the prosecution, improperly and unfairly conducted the examination of one of the witnesses, in not asking certain questions upon the direct examination, in the belief that the facts would be drawn out upon the cross examination, and not being so called out, in then endeavoring to show such facts upon re-examination of the witness.

We have had occasion to hold quite recently that the prosecuting attorney, with the leave of the court, had a right to have counsel assist him in the prosecution of a criminal case, and nothing is even intimated in this case tending to show that the person chosen was in any way interested so as to disqualify him, or render him an unfit or improper person for the position, and we do not see anything in his conduct during the trial, or the examination of the witness referred to, that could tend to the prejudice of the accused, as the court sustained the objection to the questions asked upon re-examination.

Second. That it appeared that one of the jurors had formed and retained an opinion which evidence would be required to remove.

It appeared upon examination of this juror that he had read a little about the case,--in all about twenty lines; that from this he had formed an opinion, not of a fixed character, but which would require evidence to remove, and he believed he would be able to render an impartial verdict according to the evidence submitted upon the trial. What the opinion was, whether favorable or unfavorable to the accused, did not appear. The showing as to the incompetency of this juror was insufficient. The opinion he had formed was not based upon anything he had himself witnessed, or from information derived from any one who claimed to know the facts, but from reading a few lines in a newspaper, which could not have given a very full account of the transaction or made a very deep or lasting impression upon his mind, or one that would preclude him from an impartial examination of the facts as presented during the trial. Holt v. People, 13 Mich. 224.

Third. That while it was competent in this case to show in general terms that the person injured made complaint, yet that the court erred in allowing evidence of the particulars of such complaint to be given.

Even if we concede that the particular statements made by the girl shortly after the alleged outrage was committed, could not be shown upon the direct examination, yet it would not avail in this case, as a careful reading of the record fails to show any such examination or testimony. The testimony given as to what the girl said is of the most general character and does not attempt to give the particulars of the transaction or any part thereof. In this connection we may dispose of the objection made to the testimony given by Mrs. Bull as to what the boys who had been in the company of the injured girl said when they first returned home. They merely related that the man in whose field they had been picking thistles had detained the girl and had threatened to put them in jail. The whole purport of the statement made was to inform the girl's guardian where she was and to account for her absence. It was not known or even suspected at the time that a crime had been or would be committed, nor did it tend to implicate or identify any person. It is difficult to imagine how the introduction of this evidence could have tended in the slightest degree to prejudice or injure the accused; yet it was one of those circumstances or parts of an entire transaction proper to be laid before the jury so as to give them a connected and intelligent view of what, acting upon the information given, was afterwards discovered.

Fourth. That the court erred in admitting and in not afterwards striking out evidence as to the confessions made by the accused to one Miller.

It appeared that Miller accompanied the officer who made the arrest, and that after the arrest was made and as they were riding together in a buggy, Miller said to the accused: "Are you not ashamed of this matter? I know your father and you had better tell me so I can tell him all about it, so that he can help you." It seems clear to me that what was said in answer to this was neither "forced from the mind by the flattery of hope nor by the torture of fear." The person who held out the inducement in this case, if such it could be called, had no power or authority, nor did he pretend to have, to do anything for the accused, except to inform his father of the transaction, from whom the expected help was to come. Had the inducement been made in an ambiguous manner, so that the accused may or could have supposed that the officer who was present was the one who should help him, it would have been very different. Such, however, was not this case. The help was to come from a particular person, the father of the accused, who, from aught that appears, neither had, nor could be supposed to have, any power or authority whatever to influence in any way the officers of the law or the complaining witness or her friends. Not only this, but it is not apparent what right Miller had to make such an agreement or hold out such a promise, or that it would be performed. The only legitimate inference to be drawn from the inducement held out in this case would be that his father would aid and assist him in any prosecution that might afterwards be commenced. Such help when promised by a private individual is not in my opinion such a flattery of hope as to destroy the voluntary character of the confession made in consequence thereof. There doubtless have been cases which have gone farther than this, and which if followed would exclude what was said in this case; but in my opinion the better reason and weight of authority is the other way. 1 Greenleaf's Evidence, § 219 et seq. and note.

Fifth. This objection relates to the refusal of the court to permit the witness Miller to detail the conversation that took place at the house of Mrs. Bull, and to give the conversation in the language spoken.

The conversation was partly in German, and the object in asking this detailed...