Upon leave granted by the Supreme Court the defendant, Woodrow Besonen, prosecutes this appeal from his conviction on September 24, 1959, of second-degree murder.
The body of George Sweigert was found partly submerged in the laundry tubs in the basement of his home on the morning of February 6, 1959. He was killed by a blunt instrument that was used'to inflict multiple compound fractures of the skull and bones of the face. A bloodstained ball-peen hammer was found near the body. There was a considerable amount of blood on the basement floor and a streak of blood leading from the stairway to the laundry tubs. The first floor had been ransacked by either a burglar or someone wanting it to appear that a burglary had occurred.
An autopsy was performed late on February 6th, from which the medical examiner determined the time of death to be 9 p.m. on February 5th, plus or minus 3 to 4 hours. Sweigert had a 6:30 p.m. appointment with his doctor, which he did not keep. The defendant and Sweigert were close friends. They had worked for the same employer for several years and for some time had been driving to work together. Normally the defendant would come to Sweigert’s home about 6:45 in the morning and ride to work in Sweigert’s car. They usually would arrive at work at about 7 :20.
On February 5th the defendant and Sweigert left work at 4:30 p.m. and went to a bar where they had a couple of drinks. They left the bar together, *135 apparently on friendly terms, and were seen outside Sweigert’s home about 5:15 p.m. Defendant testified that he immediately drove home, but this was contradicted by testimony of a neighbor who said he saw the defendant standing by his car while Sweigert assisted a lady whose automobile was stuck on the ice. There was no evidence that the defendant entered Sweigert’s home nor at any time was there testimony that the defendant and Sweigert were on anything but friendly terms.
On February 6th the defendant arrived at work about 7 a.m. He testified that he arrived early because he had to put up tarps that day before work could begin. The defendant told fellow workers that he had gone by Sweigert’s home, knocked on the door and “got no answer.” There were no lights on and he left and came to work in his own car. After he had been on the job approximately half an hour, the defendant called the general superintendent and told him he had gone to Sweigert’s home “and he knocked on the door and he didn’t get no answer.”
That afternoon the body was discovered. The defendant was interviewed at his home by detectives and when they “didn’t get a satisfactory answer” from the defendant they placed him under arrest.
The defendant was questioned intermittently that afternoon and evening and during the next day (February 7). That evening at about 10:30 defendant’s attorney came to police headquarters. According to the examination testimony of a police officer, the attorney was not refused permission to see the defendant, but it was suggested that since the hour was late he should come back on Sunday and that this was agreed to by the attorney.
During the investigation, the clothing worn by the defendant on the day the offense occurred was examined for bloodstains. On the inside left pant leg a bloodstain 1/32 of an inch in diameter was found. Due to the size of the stain, it was marked “insufficient for human blood type identification” *136 by the examiner at the Detroit police department scientific laboratory.
On February 9, 1959, the defendant was brought to court on a writ of habeas corpus. Disposition of the writ was adjourned for 24 hours; adjourned on February 10th for an additi onal 24 hours; and ultimately dismissed on February 11th, when the defendant was arraigned on a warrant charging second-degree murder. Approximately two hours after the first adjournment, the defendant made a statement which was stenographically recorded and read into evidence at defendant’s trial. During the trial the defendant testified in his own behalf. The discrepancies in his statements to the police, and to coworkers, and his trial testimony were fully explored on cross-examination.
The foregoing recital of facts indicates the nature of the people’s case against the defendant. The people sought to prove that the defendant was at Sweigert’s home as late as 5:15 on the afternoon of the 5th; that Sweigert died at 9 p.m., plus or minus 3 to 4 hours; and that defendant failed to report to the authorities when he saw evidence of foul play at the decedent’s home on the morning of the 6th.
The sufficiency of the evidence is not raised in this appeal. We do not, therefore, decide whether the evidence was sufficient to justify conviction.
2
*137
We discuss the evidence only to show that the case against the defendant was circumstantial and slight. Defendant’s claims of error will be viewed by this Court in that light.
Cf. Fiswick
v.
United States
(1946),
The defendant was arrested Friday afternoon, questioned that day and the next, gave conflicting stories, and still was not arraigned.* * 3 There is a dearth of evidence that the defendant was represented by or advised of his rights to an attorney prior to or during any of these statements made on February 6th or 7th. Even allowing a reasonable time to investigate defendant’s statement, there is no excuse for failing to arraign the defendant Saturday night or Sunday as then required by CL 1948, §764.13 (Stat Ann 1954 Rev § 28.872), 4 and CL 1948, § 764.26 (Stat Ann 1954 Rev § 28.885).
“Magistrates of Michigan are * * * on legal duty at all times; Sundays, holidays or no.”
People
v.
Hamilton
(1960),
The people argue that the statements obtained from the defendant from the time of his arrest on February 6th until arraignment on February 11th were not confessions but exculpatory statements
*138
and were not, therefore, within the rule of
People
v.
Hamilton, supra.
We do not read
Hamilton
so narrowly. Its rule of exclusion was intended to deny the police authority to conduct prolonged interrogation of a suspect. Viewed in this light, it is obvious that the
Hamilton
exclusionary rule applies to confessions, admissions and statements, whether inculpatory or exculpatory. While the recent decision of
Miranda
v.
Arizona
(1966),
“The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word.” Miranda v. Arizona, supra, at pp 476, 477. See, also, Johnson v. New Jersey (1966),384 US 719 (86 S Ct 1772 , 16 L ed 2d 882).
The real test to be applied is whether the statement turned out to be incriminating.
Wong Sun
v.
United States
(1963),
The defendant’s conviction became final in 1959 when the period for filing a timely application for leave to appeal had expired. But for this fact we wopld bo required to reverse the conviction fiecap.se
*139
of the exclusionary rule announced in
Hamilton, supra.
When the Michigan Supreme Court announced its decision in
Hamilton
it carefully noted that its decision would operate “prospectively under our supervisory powers.”
There is a compelling reason for reversing this conviction. During the course of the trial the assistant prosecutor introduced testimony to show that some two weeks prior to the homicide the defendant was with the wife of the decedent’s brother-in-law. She related an attempt by the defendant to molest her which she successfully resisted. An immediate objection by the defendant was made and the jury was then excused. The following colloquy then took place:
“Mr. Pentolino [Prosecutor]: I think it is within point of time because they later told George Sweigert about what happened in this kitchen, and we have reason to believe that George told Besonen.
“Mr. Chal fin: How are you going to put that in evidence with a dead man?
“Mr. Pentolino: 1 admit we are over the barrel, hut I think we can lead up to circumstances, from what was an amicable association to what was a complete breaking off.” (Emphasis supplied.)
This incident involving a woman who was not a relative or close friend of the decedent 5 and occurring nearly two weeks prior to the homicide had no probative value whatsoever and was clearly prejudi *140 cial. When the jury returned to the courtroom, the court instructed them that the testimony was stricken and they were told to disregard it.
We should note that we are taking into consideration the studied manner in which this evidence was placed before the jury. The excerpt from the tram script which we have quoted above shows that the prosecutor knew at the time he sought to introduce the evidence that it was totally inadmissible. He conceded that he was “over the [a] barrel.” To aggravate the prejudice to the defendant, the prosecutor ignored the ruling of the court excluding the evidence when he subsequently asked the defendant on cross-examination:
“Q. [By Mr. Pentolino] Isn’t it true, Mr. Besonen, that he was riled up because of your conduct and attitude after long periods of consistent drinking, is that true? * * *
“Q. Isn’t it true, * * * Mr. Besonen[,] .that he accused you of your bad conduct and told you that he .didn’t want you there any mor.e?”
The court had already ruled on the subject and there was no reason- — no legitimate reason — for bringing’ the matter to the jury’s attention again. .
These questions were remarkably similar to those that were so severely condemned in
Berger
v.
United States
(1935),
The failure of defendant to move for a mistrial or to object to the prosecutor’s cross-examination does not preclude us from granting a new trial if the interests of justice require.
Cf. People
v.
Ruggero
(1923),
The conviction is set aside and case remanded for a new trial.
Notes
It is often fruitless to seek precedents to support an argument involving sufficiency or insufficiency of the evidence but it seems clear that the people must show more than mere opportunity to commit the crime, coupled with false exculpatory statements. Cf. Cooper v. United States (1954), 94 App DC 343 (218 F2d 39). United States v. McConney (CA 2, 1964), 329 F2d 467. As Chief Justice Shaw noted in the famous case of Commonwealth v. Webster, 5 Cush [59 Mass] 295, 317, “An innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs.”
Additionally, there is some evidence tending to point to the defendant’s innocence. The homicide was a particularly bloody one and it was the theory of the police that the murderer dragged Sweigert to the laundry tubs after the blows were struck. Yet no blood was found on the defendant’s person or his clothing exeept for a small spot approximately 1/32 of an inch in diameter on the inside of pne pant leg. The specimen was too small to determine whether or *137 not it was human blood. Furthermore, the defendant’s fingerprints did not appear on the murder weapon or elsewhere in the house as far as the record shows although fingerprint experts went over the house carefully.
“It takes something more than a robust suspicion to convict a defendant in a criminal case.”
United States
v.
Carengella
(CA 7, 1952), 198 F2d 3, 7, cert denied,
The conflict in his statements arose when he first told the officers he did not enter the house on the morning of the 6th and then admitted he entered the house and saw what appeared to be either mud or bloodstains on the basement floor. When asked why he didn’t tell anyone what he had seen, the defendant answered “I just didn’t.” This statement was made at approximately 4 p. m. on February 7th. Both of these statements were offered and admitted into evidence.
Currently covered by CLS 1961, § 780.581 (Stat Ann 1965 Cunt Supp § 28.872 [1]),
She testified, in identifying the decedent’s body, as follows:
“Q. Did you know one George Sweigert in his lifetime?
“A. No. I have only known him — well let me see — just a little over 2 years when I married [his brother-in-law].”
“Tlie United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to'govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a ease, but that justice shall be done.' As such, ho is in a peculiar and very definite sense the servant of the law, the twofold aim of whieh is that guilt shall not escape or innoeenee suffer. He may prosecute with earnestness and yigor — indeed, he .should do so. But, while he may strike hard blows, he. is not at liberty to strike foul onés. It is as much his duty to refrain- from "improper methods" calculated to produce a- wrongful — conviction—as jfis to use every legitimate means to bring about a just one. . '>
“It is fair to say that the average jury, in .a greater or. less degree, hag confidence that these obligations, which" so plainly rest upon the prosecuting attorney,- will b;e. faithfully, observed.; .Conse *141 quently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly earry none. The court below said that the ease against Berger was not strong; and from a careful examination of the reeord we agree. Indeed, the ease against Berger, who was convicted only of conspiracy and not of any substantive offense as were the other defendants, we think may properly be characterized as weak — depending, as it did, upon the testimony of Katz, an accomplice with a long record.
“In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in. assuming its nonexistence. If the ease against Berger had been strong, or, as some courts have said, the evidence of his guilt 'overwhelming/ a different conclusion might be reached.”
Berger
v.
United States
(1935),