THATCHER v. DETROIT TRUST CO.
Supreme Court of Michigan
April 4, 1939
288 Mich. 410
There is nothing alleged in plaintiff‘s second count that makes his cause of action anything more than an ordinary suit for fraud and misrepresentation. It is perfectly cognizable at law, and is by no means of so peculiarly an equitable nature that the statute of limitations should be held inapplicable to it.
Plaintiff‘s contractual claims and alleged cause of action under the common counts are subject to the same bar of the statute.
The order of dismissal is affirmed, with costs to appellee.
WIEST, SHARPE, POTTER, CHANDLER, NORTH, and MCALLISTER, JJ., concurred. BUTZEL, C. J., did not sit.
PEOPLE v. BIGGE.
Docket No. 84, Calendar No. 39,978
Supreme Court of Michigan
Decided April 4, 1939
288 Mich. 417
WIEST, J.
Submitted October 13, 1938.
In prosecution for embezzlement, prosecutor‘s remark in opening statement that he would produce a witness to whom defendant‘s brother-in-law stated defendant was guilty, which statement was made in the presence of defendant who said nothing about it, held, inexcusable, wholly without warrant of law, and to have planted an irremovable impression in minds of jury, and reversible error notwithstanding defendant‘s objection was not followed by request for a ruling and an instruction to the jury, where testimony taken to support such statement in the absence of the jury was ruled inadmissible as hearsay.
Since there can be no such thing as confession of guilt by silence in or out of court, the unanswered allegation by another of the guilt of a defendant is no confession or evidence of guilt on the part of a defendant.
3. SAME—MISCARRIAGE OF JUSTICE—STATUTES—CONSTITUTIONAL LAW.
Statutory provision that no judgment or verdict should be set aside or reversed or new trial granted in a criminal case on various enumerated grounds unless the error complained of resulted in a miscarriage of justice may mollify minor errors which clearly can be held not to have affected the result but is not a cure-all, must serve within constitutional limitations, and cannot cure an error which deprives an accused of the right of due process of law (
4. SAME—SUPREME COURT.
Since the Supreme Court is not the trier of the facts in a criminal case it must apply the law to the case as tried and is not concerned with the guilt or innocence of the accused.
5. SAME—EMBEZZLEMENT—INTENT—EVIDENCE—OTHER LIKE ACTS.
Intent is a matter involved under a charge of embezzlement and the prosecutor is at liberty, under the statute, to show like acts tending to disclose that the act charged was with intent on the part of defendant fraudulently to convert the property to his own use (
MCALLISTER, J., dissenting.
Appeal from Manistee; Ferguson (Homer S.), J., presiding. Submitted October 13, 1938. (Docket No. 84, Calendar No. 39,978.) Decided April 4, 1939.
Charles G. Bigge was convicted of the fraudulent conversion of money. Reversed and remanded for a new trial.
Kim Sigler and Max C. Hamlin, for defendant.
Raymond W. Starr, Attorney General, Wilfred J. Lewis, Prosecuting Attorney, and Howard L. Campbell, Special Prosecuting Attorney, for the people.
“1. Was prejudicial error committed by the special prosecuting attorney in his opening statement to the jury?
“2. Did the special prosecuting attorney commit prejudicial error in stating to the jury in his opening statement that the defendant, C. G. Bigge, had embezzled the sum of $279,365.11, and then proceeding to introduce proofs in support thereof on the theory of showing intent, until limited by the court in the number of said items?”
In his opening statement to the jury of intended proof the special prosecutor said:
“On the 1st day of May, 1937, in Detroit where a conference was held with Mr. Bigge with one of his very close friends and a relative, the matter of his embezzlement was talked over at length by another witness who will testify in this case. They were going over various items of this embezzlement and the amount, and what Charles had done with the money, and this person, his brother-in-law in fact, said to this witness who will testify, ‘What‘s the use of going over this matter again. Charles is guilty as hell.’
“Mr. Sigler (attorney for defendant): I object to that as being improper unless Charles G. Bigge was present.
“Mr. Campbell (special prosecuting attorney): I haven‘t finished. Charles Bigge could have said right there if it wasn‘t true. It was his duty to have said so.”
At the trial the prosecutor offered testimony that the defendant was present in the room and claimed, under the authority of People v. Todaro, 253 Mich. 367,* the statement and failure of defendant to deny the same was admissible.
In the absence of the jury the court took the testimony and ruled it inadmissible. The error, if any, was, therefore, in the opening statement.
The Todaro Case was confined to res gestae occurrences and is no authority for admitting the testimony in the instant case. The time has not yet come when an accused must cock his ear to hear every damaging allegation against him and, if not denied by him, have the statement and his silence accepted as evidence of guilt. There can be no such thing as confession of guilt by silence in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of a defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt. He said nothing, and what was said in his presence by another was inadmissible, just as the court later held.
Did the statement of the prosecutor constitute reversible error?
We are urged to notice the guilt of defendant appearing in this record and affirm the conviction under the authority of
“No judgment or verdict shall be set aside or reversed or a new trial be granted by any court
of this State in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”
That statutory provision is not a cure-all for it must serve within constitutional limitations or else be declared void. Minor errors which clearly can be held not to have affected the result may be mollified by this statutory provision, but errors which deprive an accused of the right of due process of law cannot be composed thereby to the detriment of an accused. The responsibility of maintaining the right of fair trial and due process of law is placed with the judicial branch and cannot be otherwise by legislative permission. We are not concerned with the guilt or innocence of the accused, for we are not triers of the facts and must apply the law to the case as tried. The statement was inexcusable, wholly without warrant of law, planted irremovable impression, and rendered defendant a victim of the error. The prosecutor by such statement of intended proof of defendant‘s guilt brought an effect so probable, so inadmissible, and so prejudicial as to constitute irreparable error.
The charge in the information involved intent and the prosecutor, under the statute (
We find no objection preceding the limitation imposed by the court and do find the utmost care taken by the court in limiting consideration by the jury
BUSHNELL, SHARPE, CHANDLER, and NORTH, JJ., concurred with WIEST, J.
POTTER, J. Defendant was tried, convicted, and sentenced for a criminal offense. In his opening statement to the jury, the special prosecuting attorney said:
“On the 1st day of May, 1937, in Detroit where a conference was held with Mr. Bigge with one of his very close friends and a relative, the matter of his embezzlement was talked over at length by another witness who will testify in this case. They were going over various items of this embezzlement and the amount, and what Charles had done with the money, and this person, his brother-in-law in fact, said to this witness who will testify, ‘What‘s the use of going over this matter again. Charles is guilty as hell.’
“Mr. Sigler (attorney for defendant): I object to that as being improper unless Charles G. Bigge was present.
“Mr. Campbell (special prosecuting attorney): I haven‘t finished. Charles Bigge could have said right there if it wasn‘t true. It was his duty to have said so.”
Defendant reviews by appeal in the nature of a writ of error.
1. The right to trial by jury in criminal cases was established at common law. The most pointed objection to the adoption of the Federal Constitution was that it did not guarantee trial by jury. By tacit agreement, it was adopted with the promise
The right of confrontation carried with it the right of cross-examination. There never was any practice which deprived parties of the right to cross-examine witnesses. DeWitt v. Prescott, 51 Mich. 298. It is the test of the knowledge, as well as the veracity, of witnesses. O‘Donnell v. Segar, 25 Mich. 367. The benefit of cross-examination is an essential condition to the reception of direct testimony. Heath v. Waters, 40 Mich. 457. In order to render testimony admissible, it must appear the party against whom it is to be used had an opportunity to cross-examine. Sperry v. Moore‘s Estate, 42 Mich. 353. So strict has been the rule that if a witness dies after direct examination and before cross-examination all the testimony of such witness is excluded. Sperry v. Moore‘s Estate, supra.
In the trial of jury cases, facts are to be laid before the jury by testimony. Witnesses must be under oath. No one has a right to place unsworn statements in relation to material facts before the
“If counsel possesses any information in relation to the facts which he thinks should get to the jury, he should be sworn as a witness and subject himself to the rules governing the taking of testimony.” Clark v. Ulrich, 153 Mich. 695, 719.
The harm is done when the improper statements are made. Rice v. Warner Hotel Co., 187 Ill. App. 317; Holman v. Cole, 242 Mich. 402.
“If counsel, well learned in the law, choose to deliberately imperil the interests of their clients by improper advertisement of a fact well known to be prejudicial to a fair and impartial consideration of the case by the jury, the resulting judgment should be set aside, even though the party who suffers is the innocent client instead of offending counsel.” Grubaugh v. Simon J. Murphy Co., 209 Mich. 551.
2. It is argued that this statement was made in good faith, and the good faith of counsel is sufficient to authorize this court to overlook it. It makes no difference whether the statement was made in good faith or bad faith. The result to the defendant was the same in either case. Even though counsel for plaintiff acted in good faith, he succeeded in placing before the jury a prejudicial statement, unwarranted by the orderly procedure of criminal trials, in lodging in the minds of the jury before any testimony was admitted substantially that defendant had acquiesced in the truthfulness of a charge of guilt. I know of no statement which could have been more prejudicial to a fair and impartial trial than the one made.
3. It is contended this statement could have been supported by testimony; that it was fairly within the
In People v. Courtney, supra, this court quoted with approval the language of People v. O‘Brien, 68 Mich. 468, and of 2 Wigmore on Evidence (2d Ed.), p. 556 et seq., § 1072; 1 Greenleaf on Evidence (16th Ed.), p. 330 et seq., §§ 197, 199; 2 Wharton‘s Criminal Evidence (10th Ed.), p. 1403 et seq., § 679; Davis v. State, 131 Ala. 10 (31 South. 569); People v. Smith, 172 N. Y. 210 (64 N. E. 814); Commonwealth v. Walker, 13 Allen (95 Mass.), 570; Fry v. Stowers, 92 Va. 13 (22 S. E. 500), but pointed out that the statements alleged to have been made and sought to be introduced in that case were not admissible.
There is nothing in the rule of People v. Todaro, supra, which warranted the making of this statement.
4. It is sought to uphold the conviction of defendant under the authority of
Juries are the sole judges of the credibility of the witnesses and the truthfulness of their statements. They are the tribunal specified by the Constitution to determine the guilt or innocence of the defendant. This statute in effect commands this court, in case there has been a criminal trial and erroneous conviction of the defendant, to reexamine the entire case upon the facts. It places the burden upon the defendant to show there has been a mis-
Criminal cases are reviewed by writ of error; and a writ of error, under our Constitution, is an original writ.
“The writ of error only lies upon matter of law arising upon the face of the proceedings; so that no evidence is required to substantiate or support it; and there is no method of reversing an error in the determination of facts, but by an attaint, or a new trial, to correct the mistakes of the former verdict.” 3 Blackstone‘s Commentaries (8th Ed.), chap. 25, p. 406.
“The right of trial by jury is secured by constitutional provisions, and it would not be competent to make any substantial changes in its character.” Underwood v. People, 32 Mich. 1 (20 Am. Rep. 633).
“The right of trial by jury remains as it existed at the time of the adoption of the Constitution and was known to the previous jurisprudence of this State. The incidents of such trial, which were so known and recognized, which are essential to the enjoyment of the right, * * * cannot be impaired or destroyed without violating this constitutional provision.” People v. Harding, 53 Mich. 48 (51 Am. Rep. 95).
The limit of this court‘s authority in the review of criminal cases by writ of error is to determine whether error has been committed on the trial. If
This statute commands this court to disregard the constitutional limits of its authority, is a legislative attempt to destroy the constitutional safeguards of individual liberty, and to confer on this court jurisdiction denied by the Constitution. It is void.
Prejudicial error is shown by the record. Defendant did not have a fair trial. Damaging facts were placed before the jury prior to the introduction of any testimony. Such procedure was over defendant‘s objection. Thereafter, the jury could not well have been impartial. These damaging facts were not supported by proof. Such proof was incompetent. The statements were not made under oath. Such statements stand upon the record, unwarranted by procedure and unsupported by proof. Defendant did not have a judicial trial, but a prejudicial trial. No appellate jurisdiction, no power and authority to pass upon the facts in criminal cases could be conferred on this court by the statute cited and relied upon. The guilt or innocence of the accused was a question for a jury. This court is concerned with the question, whether defendant had a
“The withdrawal of a plea of guilty is a poor privilege, if, notwithstanding its withdrawal, it may be used in evidence under the plea of not guilty.”
The statement of the assistant prosecuting attorney above-quoted was just as prejudicial to defendant as testimony of the former plea of guilty would have been on the trial of the case if he had pleaded guilty and then changed his plea.
Defendant‘s conviction is reversed and the cause remanded.
MCALLISTER, J. (dissenting). Defendant appeals from a conviction for embezzlement.
It is claimed that the following portion of the opening statement of the prosecutor constituted reversible error:
“On the 1st day of May, 1937, in Detroit where a conference was held with Mr. Bigge with one of his
very close friends and a relative, the matter of his embezzlement was talked over at length by another witness who will testify in this case. They were going over various items of this embezzlement and the amount, and what Charles had done with the money, and this person, his brother-in-law in fact, said to this witness who will testify, ‘What‘s the use of going over this matter again. Charles is guilty as hell.‘”
When this statement was made, counsel for defendant objected to it “as being improper unless Charles Bigge was present.” Upon this objection, the prosecutor stated: “I haven‘t finished. Charles Bigge could have said right there if it wasn‘t true. It was his duty to have said so.”
No further statement of the grounds of objection was made. On the trial, and at a time when the jury was absent, the court asked the prosecutor what he intended to prove by a certain witness. In answer to this inquiry the prosecutor proceeded to examine the witness in question as to the alleged statement made by defendant‘s brother-in-law. The court then decided that such evidence should be excluded. All of this was in the absence of the jury, and upon the court‘s ruling, the jury was recalled and nothing further said about the matter in their presence.
After conviction, defendant made a motion for new trial, and for the first time raised the question that the above opening statement was prejudicial. The court stated that no request to charge the jury on the point was made, found that the statement was made in good faith, and denied the motion for a new trial. At the time the statement was made, no one considered it prejudicial. Counsel for defendant objected on the specific ground that it would be improper if defendant had not been present at the
In People v. Prinz, 148 Mich. 307, it was said:
“It was conceded at the argument that no exception was taken to the rulings of the trial judge now complained of, and no requests to charge upon the questions which it is now claimed should have been covered. The general rule in criminal as well as civil cases is that this court will, on review, consider only such questions as were presented for the consideration of the trial court.”
See, also, People v. Graney, 91 Mich. 646; People v. Richards, 150 Mich. 434.
In People v. Brott, 163 Mich. 150, it is said:
“We adhere to the general rule that questions will not be reviewed unless raised in the court below, and brought here in accordance with the general practice, for to hold otherwise would enable defendants to raise most any question without exception. There is much good sense in the strictest rule upon this subject, and certainly to extend it * * * beyond the exception mentioned would be to put a premium upon a practice of treating a point as inconsequential, or conceded, and thereafter asking a reversal, upon the ground that it has been overlooked, thus allowing a defendant to have an ‘anchor to the windward’ in case he shall fail of acquittal on the merits. If it be admitted that this court has this power, and on occasion will exercise it, in a capital and even in other cases, it should
be done only when the record clearly shows that a manifest injustice has been done; but this should be held as in the nature of an act of grace, wherein the noncompliance of counsel with the rules of practice is overlooked, rather than a recognition of a defendant‘s right to disregard the rules and practice usually required to assure justice to the State in the prosecution of offenders.”
In People v. Rosa, 268 Mich. 462, it is said:
“Prejudicial remarks of counsel may be cured by proper and timely instructions. People v. Lincourt, 221 Mich. 674; People v. Connors, 251 Mich. 99. However, this court has repeatedly stated that errors will not be considered on review in the absence of objection to the prejudicial remark or comment, and that it is the duty of opposing counsel to seek and obtain a ruling of the trial judge. People v. Goldberg, 248 Mich. 553.”
With regard to the conduct of the prosecutor in attempting to prove similar acts as bearing upon the quo animo of defendant, as provided in
I do not see how the question of deprivation of a fair trial is presented in this case, where the conduct of the prosecutor was acquiesced in by defendant.
In Sunderland v. United States (C. C. A.), 19 Fed. (2d) 202, 216, a fair trial is defined as follows:
“The term ‘fair trial’ is often used, but not often defined. It is of broad scope. While we shall not undertake to give a formal definition of the term, yet it may not be amiss to mention, in part at least, its content. It means a trial conducted in all material things in substantial conformity to law. * * *
“It consists not only in an observance of the naked forms of law, but in a recognition and just appreciation of its principles * * * It means a trial before an impartial judge, an impartial jury, and in an atmosphere of judicial calm * * * Being impartial means being indifferent as between the parties * * * It means that the acts and language of the prosecuting attorney are subject to control; that his duty consists, not in securing conviction at all hazards, but in ascertaining the truth * * * It means that the defendant shall have a fair opportunity through his counsel to outline his defense to the jury. It means that the right of cross-examination shall be respected * * * It means that, while the judge may and should direct and control the proceedings, and may exercise his right to comment on the evidence, yet he may not extend his activities so far as to become in effect either an assisting prosecutor or a thirteenth juror * * * It means that, if evidence of good character of the defendant is introduced, an adequate instruction to the jury shall be given touching the probative value of such evidence.”
In State v. Rush, 108 W. Va. 254 (150 S. E. 740), it was said:
“The accused was, of course, entitled to a fair trial. But the term ‘fair trial’ does not imply a perfect trial. A trial without prejudice to the accused is a fair one. And because a perfect trial is rarely, if ever possible, necessity and common sense have evoked the rule of ‘harmless error,’ as to error which does not prejudice.”
Judgment should be affirmed.
BUTZEL, C. J., did not sit.