*1 DebMartzex proved may so be received as evidence that no snch act, transaction, occurrence or event in did, fact, place.” take permits
The statute, then, business records to be admitted to show a nonoccurrence.
Appellant’s fourth and final issue is that the against great weight verdict was of the evidence. A review the record shows that there was con- tradictory testimony. very It is conceivable that the jury could have reached a verdict for either side. plaintiff However, the verdict favorable to is not against great weight of the evidence. entry judgment plain-
Remanded for favor $8,000 tiff the sum of with interest thereon to be computed. party having prevailed Neither on the may entire no record, costs be taxed.
All concurred.
PEOPLE v. DERMARTZEX
Opinion Law —Continuance—Discretion. 1. Criminal granting of a criminal ease a continuance rests within (GCR 1963, 503). the sound discretion of the trial court Leading 2. Witnesses — Law —Discretion. Questions —Criminal Allowing leading questions to ask of the com- plainant rape in a for assault with intent References for Points in Headnotes 2d, Am Jur Continuance [1] [2] [3] [4-6] §§ seq. Jur, et 58 Am Witnesses § 2d, Am29 Jur Evidence § seq. Jur, Rape 44 Am et79 Arp 29
not an abuse years of discretion where the was 11 permitted old and the defense counsel was also wide latitude questioning complainant. *2 Delay. 3. Criminal Law —Evidence—Res Gestae Statement — Allowing testimony witness’s pros- in a ecution rape for assault with intent to had told her that the gestae defendant had proper part hurt her was as of the res spontaneous where the statement voluntarily made, and though even the statement was not made until one or two days assault, after the delay explained by where the engendered fear complainant by the defendant. Rape Statutory Rape 4. — —Evidence—Other Offenses. specific impropriety prosecutrix Proofs of acts of between the purpose showing and opportunity, the defendant for the disposition parties, tending and intimate relations to self-respect modesty break down and are admissible cases dealing statutory rape. with Rape Statutory Rape 5. — —Evidence—Other Offenses —Caution- ary Jury. Instructions to An jury limiting proofs instruction to specific the use of of impropriety prosecutrix acts between and the defendant in a statutory rape for either attempt or an to statutory rape given commit need not be where there was no objection testimony concerning acts, request no testimony’s instruct on the use, objection to limited and no the failure to instruct. by O’Hara,
Dissent J. Rape Statutory Rape — —Evidence—Other Offenses —Caution- ary Jury. Instructions judge The trial jury purposes must instruct the as to the limited testimony concerning specific which impropriety acts for prosecutrix between the dealing and the in a case defendant statutory with rape may used, irrespective request aof limiting instructions; to instruct for constitutes rever- failure sible error. Appeal from Recorder’s Detroit, Robert E. DeMascio, J. Submitted Division 1 November 12, 1970, at Detroit. (Docket No. 8273.) Decided December Leave to appeal for. applied DerMartzex was convicted of assault E. C. Robelto Affirmed. Defendant rape. appeals. intent with General, Robert A. Kelley, Attorney Frank J. Cahalan, L. General, William Solicitor Derengoski, Garnovale, Dominick R. Attorney, Prosecuting Thomas Smith, and P. Chief, Appellate Department, Attorney, people. Prosecuting Assistant Farmg, appeal. J. Michael J., Before: P. Holbrook McGregor, JJ. O’Hara,* guilty by was found J. Defendant Holbrook, of Detroit Recorder’s Court for the City (Stat 750.85 of assault with intent MCLA rape, *3 28.280). July Ann 1962 He was sentenced §Rev three for a term of not less than 28, 1969, prison nor more than ten years. years four issues He his conviction and asserts appeals consider as restate and determination which we follows: deny-
1. abuse discretion in Did the trial court its a continuance? ing warrant a was filed and case, complaint
In this held on was July 18, issued The examination over and defendant was bound 8, 1968, August an in- filed 20, 1968, people August trial. On defendant 11, 1968, On September formation. an Defendant requested and stood mute.
arraigned 11, April trial court conference adjournment at the 1969, 10, On June 1969, granted. which day On the 24,1969. for trial on case was set June * sitting Appeals Justice, on the Court of Supreme Former 6, in 1963, art as amended l>y assignment pursuant to Const Opinion of the Court requested of trial, commencement defendant fire for the that a at
continuance
reasons
defend
place
day
ant’s house took
before and that de
preparation.
lacked
fense counsel
There was no
showing
inability
proceed
to trial because of
attorney
the fire at defendant’s home. Defendant’s
prior
had
retained
to the examination held
been
August
represented
had
throughout
proceedings.
all of the court
The record
any
preparation
fails to
lack of
disclose
for trial,
and defense counsel failed to demonstrate on the
prepare
motion
that he had lacked time which to
general
prevailing recognizes
for trial. The
rule
granting
that the
of a continuance in a criminal case
rests within the sound
discretion
the trial court.
v. Fleisher
2. Did the trial court its discretion in abuse allow- ing prosecutor leading questions to use and in making during comments defense counsel’s oral argument? young girl was a of the tender
age
years
of 11
and the trial
court
its discretion
leading questions
allowed to use
questioning
per
her. The defense counsel was also
questioning
mitted wide latitude in
the witness. We
present
determine under the circumstances
in this
case that the trial court did not abuse its discretion.
*4
Kratz
230 Mich 334;
Farrell
264;
v. Roat
(1898),
are transcript contained in the as follows: Opinion of the Court counsel): (defense say “Mr. Roth I will “Now, girl says this. What the was arrested is true.- When this man he had no reason—where he was work- ing guard they gotten aas could have a search war- place a or rant searched the to find camera films pictures. of obscene McCarthy (prosecutor): “Mr. I would like to ob- ject to that statement as misstatement of the law. again, “The Court: Let me hear that context will you please, Mr. French? (Whereupon pending statement was read back reporter.) referring “Mr. I. Roth: wasn’t to that. At the place they got shine shoe could have a search war- rant. conjecture. all
“The Court: That is “Mr. basing is Roth: That what the is conjecture. on, this making ruling “The I am Court: that that com- any improper appreciate
ment is and I do not other comments in that. addition to
# [*] # you defense, “Prosecutor: Now, know, did bring girl out on cross-examination this didn’t complain complain to so and so and she didn’t anyone. you Then, Mr. Roth would have believe just people bring because the didn’t out that she you was afraid under direct examination that shouldn’t believe I it, to her out in talked the n or during hall I talked to her somewhere recess. objected “Mr. Roth: That is I to. never said he talked to her. McCarthy: “Mr. I said the defense would have
you say believe I that. didn’t said he that. you girl, “The Court: Did not ask her, cross-examination whether or not she talked prosecutor? Only
“Mr. Roth: to the mother. McCarthy: question. “Mr. I asked that *5 App 213 218 29 Mich Opinion op the Court “The Court: refer to it. "Well, he can not “Mr. Roth: He can refer to the mother but he to the outside. say girl that I inferred that talked he That is the that it is an inference that objection, is leaving. “The Court: will remember the Well, thex
facts.” We determine that the comments made under the circumstances were within the discretion of trial the court and not do constitute reversible error. of Was it error for the a friend court allow told the the testify complainant that her a or after offense “She day that, two the alleged said her that the shoemaker hurt down there she didn’t want back. was afraid”? go She
The al- facts disclose that the complainant lowed at her home; to visit the defendant’s parents Canada; the friends Toronto, lived defendant; she of had, were the previous friends and that the complainant years tender being afraid of defendant, man 225 large weighing pounds. trial The allowed Mrs. who judge Cole, had come to know the complainant by reason being a friend the defendant, testify limited conversation of the complainant part as a of the res gestae.
The trial under judge the facts this case prop erly ruled that spontaneous, voluntary complaint to Mrs. Cole by the complainant was admissible as res gestae, a part of of a despite lapse day or two between incident and complaint, delay been having explained engen because the fear dered in People defendant.1 “Q. question you was: After these incidences did Mr. Der- anybody Martzex tell not to tell about this? “A. Yes. “Q. Were you afraid Mr. DerMartzex? “A. Yes.” People v. op Opinion the Court v. Davison Baker v. 429; Mich (1968), Harrington (1915), 322; (1930), Rich, 14; 133 Mich 482; Mich 303. Glover evidence of testimony into Did introduction *6 and the complainant acts between to other similar as error? defendant constitute reversible the as to the (a) testimony that Defendant asserts and defendant similar acts between even if admis admitted; (b) have been should not the purpose should have shown the sible, people introduced; and the (c) was testimony which the the instruct immediately to required trial court was testimony as of after the introduction jury For be used. may for which it purpose limited to what we turn matter, in this applicable the law D. Wil v. Donald was said the Court 94: liams (1965), 91, 2 Mich App that Michigan the rule “It has been long of offense by of commission another evidence for the purpose cannot be admitted the defendant more likely of that the defendant was showing he on trial, offense for which is have committed the nor to the corroborating testimony relating as commission of in cases principal such offense. But a to the involving statutory rape, qualified exception general rule of acts of im permits proof specific between the accused propriety for the prosecutrix and the purpose showing disposition opportunity, of the parties, and intimate relations tending break down self-respect and v. modesty. Gengels Jenness 305; (1858), 5 Mich 632; People Trzil 218. Mich (1922), (1926), Mich 469.”
That the exception to the rule is general applicable to this case is no objec- self-evident. There were tions made to the purpose and the testimony only it could serve was to show dis- opportunity, App Mich 213' (cid:127) op Opinion the Court
position parties, of the and intimate relations tend- self-respect. 11-year-old ing down This to break keeping girl given defendant’s into he acting capacity pro- been as her should have during visit to Detroit and while she was tector her many away family from miles her in Toronto, There under the circumstances Canada. this specify pur- case no need pose testimony objection of an the absence testimony request or a for á statement of its use. realize v. Askar
"We App. limiting 101, that a 95, rules instruction must immediately given requested, whether or not where another offense a defendant is testified to properly People Kelly admitted. The case of involving convic knowledge tion of the crimes of carnal female against (Stat with force her MCLA robbery will, 750.520 *7 28.788), § Ann Rev (Stat 1954 armed, MCLA § 28.797), Supp ap § 750.529 Ann 1970 Cum proved testimony admission of of a similar offense (Stat § under MCLA 768.27 Ann 1954 Rev 28 .1050). dealing limiting The several cases with in Kelly, structions were in discussed and that Court p ruled at 159: give “We hold in failure this case to instruction
immediately upon testimony admission of the was give not reversible error. We not hold to the in- requested struction at all, whether not, or is re- versible error.” People
In the cases of Anderson 13 dealing charge illegal with a of sale of App narcotics, and v. Stevens receiving prop 181,2a stolen delayed and The application by defendant in the case Stevens appeal leave to by order Supreme was (Docket the No. v. O’Haba, Dissent J. no to objections testimony where there were erty, charges or or to the requests charge objections to Askar, supra. ruled to courts, contrary our Court supra, in Kelly out, panels As the Court pointed in our Court are not accord. That be as it own extend Askar or Kelly to to may, apply we do not this case involving long-established exception rule with general dealing charge statutory or to commit rule rape attempt statutory rape. We there no to the testi objection here that where objection no no request charge, mony, failure to as GCR charge provided 1963, 516.2, there is no error. reversible
Affirmed. P. J., concurred.
McGregor, I (dissenting). J. It is with regret O’Hara, Judge must record with my disagreement Holbrook, I because for the most am in full part agreement his with opinion. I dissent.
However,
obligated
feel
myself
as
a similar offense in this
When the
testimony
I
of case is
even
type
admitted,
objection,
without
trial
instruct
judge
it
regard
mandatory
as to
limited
for which it was
purpose
irrespective
request
therefor.
admitted,
Mr.
Holmes is
that,
supposed
It
be
as
Justice
may
“Consistency is the
of small
bugaboo
to have said,
if I
Kelly2
minds”.*
*But,
wrong
necessity
I will of
here.
consistently wrong
abeyance pending
53,028-1/2)
held in
determination
same
Kelly,
7371, Supreme
our Docket No.
Court Docket
issue
53,029.
No.
*8
originally
Ralph
is attributed
Waldo Emerson
The sentiment
consistency
hobgoblin
phrased it, “A foolish
is the
of little
who
* * *
(Little,
&
minds,
Bartlett, Familiar
Brown
Quotations
.”
Company
1955), p
ed
501.
granted
appeal
Kelly (1970),
App 148, leave to
People v.
27, 1970,
October
MITCHELL v. BOUSSON Trial —Continuance—Discretion. 1. granting of a continuance rests with the sound discretion (GCB 1963, 503). of the trial court 2. Trial —Continuance—Discretion. Denying for a an the defendant’s motion continuance was not though abuse of discretion even the motion so was made the defendant could obtain counsel and at the of the time represented by motion the defendant was not where counsel occasions, the case had previous been set trial for on four on each of granted, the four times a had been continuance sought delay defendant’s motion was the second time he had trial counsel, because of substitution of latest order setting day giving the case for certain, trial was on a ample prepared. time to be
Appeal from Macomb, Alton H. Noe, J. Sub- mitted Division 2 November Detroit. 10, 1970, at (Docket No. 8373.) Decided 10, December 1970. Leave to appeal denied 384 Mich. February 22,1971.
Complaint by Francis and Louis Mitchell against Alfred Bousson for sustained damages injuries Beference in Headnotes Points [1, 2d, Am Jur Continuance §§