178 Mich. 159 | Mich. | 1913
The respondent was informed against and convicted of the crime of seduction in the Sanilac circuit court, and the case has been removed to this court for review. Among the errors complained of is the action of the trial court in permitting the name of a witness to be indorsed on the information after the jury had been sworn and the complaining witness had given her testimony in' part. At that point in the trial, the prosecutor applied to the court for permission to indorse on the information the name of Olive Nichol. He informed the court that, while he knew that Olive Nichol was a sister of the complaining witness, he was not aware until that morning that she knew anything material to the issue of the case. Whereupon respondent’s counsel made the following objection:
“We shall object to it. There is no reason why that name could not have been on before.”
Upon this statement the court granted permission to indorse the name over defendant’s objection.
The objection now made is that the showing of the prosecutor was insufficient and not under oath. The statute regulating the indorsement of names of witnesses upon the information provides that:
“All informations shall be filed during term, in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper 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; and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other wit*161 nesses as shall then be known to him.” 3 Comp. Laws, § 11934 (5 How. Stat. [2d Ed.] § 15105).
Under this statute it is clear that it would be necessary for the prosecutor to make some showing to the court in order to authorize him to indorse names on the information after it was once filed. In the case under consideration, the prosecutor stated to the court, in the presence of respondent’s counsel, that he had just been advised that morning that Olive Nichol was a material witness, and that he desired to indorse her name upon the information. As against the objection made, this showing was sufficient under the statute to authorize the court to make the order.
Had counsel at the time made the specific objection that he now makes, that the showing was not under oath, the trial court would have doubtless required the prosecutor to be sworn and granted permission to respondent to examine him touching his diligence in discovering the witness and the materiality of her testimony. There was no claim made by respondent to the trial court that he was surprised in any way, nor that he wanted time to investigate the antecedents of the witness; nor was any complaint made, after she gave her testimony, that respondent’s case was prejudiced in any way by it. In fact, the record shows that she testified to nothing which was contradicted by the respondent. Under these circumstances, we think the respondent is in no position to complain of the action of the trial court in permitting the name to be added to the information.
On the part of the defense, Lillie Gravenstein, a character witness, was sworn, and, after testifying that she was more or less in the respondent’s company prior to her marriage, she was asked the following question:
“Q. What would you say as to the character of his conduct toward you while in his company?”
Error is assigned upon the cross-examination of Max Bollman, the brother of respondent, and also upon the use that was afterwards made of the cross-examination by the prosecuting attorney in his address to the jury. For the purpose of showing the unchastity of the complaining witness, Max Bollman testified that he had had connection with the complaining witness before the respondent courted her. The prosecutor then examined him as follows :
“Q. How many acts of intercourse had you had with other girls?
“A. I don’t know.
“Q. You can’t tell?
“A. No, sir.
“Q. Various girls?
“A. Very few.
“Q. You had had with a few others?
“A. Yes.
“Q. What is your age?
“A. 19.
“Q. What other girls have you had intercourse with?
“Mr. McKenzie: Object to that as incompetent and immaterial.
“The Court: I hardly think I will permit the question to be answered.
“A. Is it necessary for me to answer that question?
*163 “Q. Yes.
“A. The only one that I can remember of is a Randall girl, a girl by the name of Randall.
“Q. That is the only one that you can remember?
“A. Yes.
“Mr. McKenzie: This is a trying position to put a witness in.
“Mr. Babcock: We didn’t put the witness in that position.
“Q. There are others?
“A. There might be one or two.
“Q. That you can’t remember of?
“A. No, sir.
“Mr. McKenzie: A gentleman will lie under such circumstances. I call the attention of the court that this is a trying position to put the witness in.
“The Court: I intimated that he need not give the names, and that I would not permit him to disclose the names of the other parties.
“Mr. Babcock: I misunderstood the ruling.
“The Court: It was' probably a misapprehension.
.“Mr. Babcock: That may be stricken out, the name the witness gave?
“The Court: Yes.”
Afterwards, in addressing the jury, the prosecutor referred to this testimony, as follows:
“Gentlemen, he tells you that he can’t remember the names of the two girls he had sexual intercourse with. The only explanation I can tell of why he didn’t know them is that perhaps he had met them in a brothel. Now think of a young man in your neighborhood, if there is any there, that in two years has had sexual intercourse with four girls, two of whom he can’t remember their names. There was no necessity for him to tell the names, the court excluded the names. That wasn’t necessary in this case; under a mistake he did tell one name, but it was excluded and you have forgotten it; but he had already said he couldn’t tell the names of the other two. But, I say, if there is a young man in your own neighborhood that had acted in that way, that has been a sport, that says he had acted in that way, and that he is a gentleman, what kind of a young man is he? If you can*164 remember, if there is any in your own neighborhood, if you know of one, what kind of a fellow is he? And he is rather proud of it.
“Mr. Farr: I desire to take exception to that.
“The Court: The exception is noted.
“If he hadn’t been proud of it, he wouldn’t have told of the other three girls, because it wasn’t necessary. His testimony would have been better without it, a good deal.”
The testimony was given under a misapprehension by both counsel of the ruling of the court, and subsequently, when the ruling was correctly understood, it was very properly stricken out. The jury doubtless understood this, and, when it was stricken out, we think it cured any prejudicial eifect its reception may have had upon respondent’s case. How the prosecutor could have so far forgotten his sense of fairness and duty, as an official, to make use of this incompetent testimony in his address to the jury after the testimony had been stricken out upon his own motion, is not easily understood. We think, however, that the sense of fairness which pervades the average jury would put the blame for this where it belonged, and prevent any resulting injustice to the respondent.
We have examined the other errors assigned and find nothing therein that calls for a reversal of the case.
The conviction is affirmed.
