*1 3969] v.
introduction of unrebutted evidence that the child
permanent injury.
suffered
The trial
con-
justified
cluded that
an
award therefor.
pretrial summary
prevent
of a
modification
injustice
manifest
is a matter addressed to the sound
discretion of the trial court. Bednarsh v. Winshall
(1965),
Opinion Coubt Evidence—-Weapons 1. Criminal Law — or Tools —Identification —Admissibility.
Weapons or tools found an accused’s at the time of his arrest be introduced in evidence at his trial without proof they very weapons by him were the or tools used charged, in the crime with which he is if the or tools might have ones been the that were used.
Keferences for Points in Headnotes [1, [2,4] [3] [6] [9] 29 Am Jur 29 Am Jur 21 Am Jur Am Am Jur, 2d, 2d, Statutes 2d, Jur Evidence Evidence Criminal Law §§ 2d, Evidence et [384] §§ [298] et 251-256. seq. seq. 623. 533,545.
9(5 Akp 19 Míen 2. Criminal Law —Sentence—Credit—Statute. robbery statutory Defendant sentenced for armed was entitled to jail credit sentence for tbe time served between bis sentence, arrest and even at the time arrest *2 escaped jail had serving he from where he was time (MOLA 769.11b). another sentence — — — 3. Criminal Law Statutes Sentence Credit Statute Con- struction. The sentence credit statute is a remedial statute which should liberally be purpose (MOLA construed to effectuate its 769- (cid:127)11b). Purpose. 4. Criminal Law —Statutes—Sentence Credit Statute — Denying a spent jail defendant for credit time from time of arrest purpose to time of nullifies sentence of the sentence credit statute which was to insure that a who has been denied either or has been unable to furnish bond longer serves a sentence no one than who has received the pending same sentence but who released on bail trial (MCLA 769.11b). Opinion Concurring Dissenting in Part and in Part
Levin, P. J. (cid:127)— Weapons (cid:127)— — — — 5. Criminal Law Trial Evidence Tools Prejudicial Identification — Effect. Although weapons person or tools of arrested a crime in which or tools were used for proof introduced evidence at the accused’s trial without they were the same instruments used in the commission crime, court, discretion, may, the trial in its and in of obliged to, evidence, some cases is exclude this otherwise admissible, because its value is overcome danger confuse, mislead, prejudice that its introduction will or jury. 6. Evidence —Similar Occurrences —Unwarranted Conclusions. Evidence similar occurrences in civil and criminal cases of generally excluded because that the trier of fact of will draw unwarranted conclusions. Kobbery Evidence—Ownership Proof—Prejudicial 7. — of Gun — Effect. A loaded hand taken he when was arrested from defendant robbery armed should not have been admitted in evidence ownersMp subsequent Ms had trial where at Ms of any logical other evidence rational connection no case. Eppect. Ownership Prejudicial Robbery — 8. —Evidence—Gun ownership a hand Introduction of of defendant’s of fact jury against mislead, prejudice confuse, and served to completely unrelated to other evidence where it was him composite part proofs the case and from guilt robbery deduced. could have been armed which Impact. Relevance—Prejudicial 9. Evidence — duty Appeals trial have courts the Court Both (its probative value) against relevance balance diversionary prejudicial impact.
Appeal Detroit, Prank Recorder’s Court from May Submitted Division Schemanske, J. G. (Docket 3,902.) Decided Au- No. Detroit. at
1968, gust 1969. robbery George armed. N. Hall was convicted *3 part appeals. and reversed Affirmed Defendant part. Kelley, Attorney Robert A. General, Frank J. Derengoski, Cahalan, William L. General, Solicitor Ap Prosecuting Attorney, Torina, J. Chief Samuel Lawyer, pellate Hackett, and K. Assistant Barbara Prosecuting Attorney, people. for the Patterson, F. defendant.
Clifford J., Before: P. Beer,* Levin, Holbrook JJ. The defendant J. was convicted Holbrook,
robbery armed.* At the trial there was introduced objection over defendant’s loaded hand * Judge, by assignment. sitting Appeals Circuit on the Court of (Stat Supp 28.797). MCLA 750.529 Ann 1969 Cum Mici-i Opinion op the Court
gun on he found defendant when was arrested two days allegedly crime after the was committed. The good victim asked whether he at was had look gun, replied which “I he that didn’t look too straight it.” asked color, testified, at When he I I steel, “It was blue sure.”2 He later testified that it think it was. don’t know for black. The
was vic- tim was then asked whether it a revolver, replied you which that, he “I couldn’t tell for sure. gun.” All I knew was that it was gun The victim that testified used the the holding up him was fired into ground warning. police as a An officerof the scien- laboratory, tific examined who days defendant a few after the defendant’s arrest, testified that he did not examine it to determine whether it had been fired.
Although the evidence did not establish gun found on the defendant at the time of arrest committing used in the weapons it is a crime, well-established rule that where or tools were used to commit a crime, or tools that might have been used to commit the crime found the accused’s at the time of arrest proof they very be introduced without were the weapons or tools in fact so used.3 charged
The information com- the crime was dangerous weapon, “with a mitted to-wit: .25 cal. automatic-pistol, Astra steel blue serial #753425.” (Emphasis supplied.) serial number so stated was the serial number of the fendant at the time of his arrest. The found on the de-
people were 652; defendant § #753425. (1960), 359 203; 3 Wigmore *4 2 Parenthetically, People (Michigan as a .25 caliber Astra blue steel Mich 539. v. Harris on citations) People the information referred to the § 238; Wharton, v. Cona 463; automatic-pistol, Criminal Evidence. People 180 Mich found on the Ritholz serial v. PIall op Opinion ti-ie Court prove the found on to the unable committing the crime. in in the used fact emphasized quoted opinion, However, all the in our “pistol” surplusage are than word words other ignored.4 and justify a to sufficient evidence There was guilty of crime that the defendant verdict charged beyond reasonable doubt. give failing the defend- court in
The trial erred specific against credit sentence ant jail prison years in between for he served the time sentencing, as the time time of his arrest and applicable provided for statute: person any is hereafter convicted “Whenever any time crime state has served within this being jail prior sentencing denied because of for offense of which furnish or unable to bond imposing convicted, he the trial court in sentence the sentence specifically grant credit shall sentencing.” jail prior to such time served (Stat Supp § 28 Ann 1969 MCLA 769.11b Cum [2]). .1083 escaped he At arrest had the time he from the Detroit House of Correction where was serving prison of his At time state sentence. appearances subsequent arrest and at court, before De- $5,000 bail was set at with two sureties. fendant did not furnish bail the he was detained county jail arraign- Wayne from the time his September through 10, 1966, ment on the on warrant sentencing date of and the trial, March period April 1967. The total detention days. for which he claims credit is 207 argument people in our After oral stating depart- furnished us with affidavits MCLA 767.47 “All unnecessary (Stat Ann allegations 1954 Rev shall he 28.987). rejected surplusage.” *5 Apr [Aug- op Opinion the Court given has defendant credit of corrections
ment in the days Wayne jail served county for the 207 still not served fully imposed upon sentences against earlier for other following the defendant convictions offenses.5 18 Mich People
In v. Chattaway App Michigan, our observed that in with exceptions Court here a sentence not be relevant, imposed upon completion commence of another expiration (In [1964], sentence re 372 Mich Carey It said sentence credit statute avoids unnecessary chilling of exercise of the to trial right by requiring adjustment the sentence of one denied or unable to he furnish bond so that spends no longer jail than one same receiving the sentence who is released hail trial. pending
This statute is remedial liberally and has been by our so as to construed Court effectuate its pur People v. pose. Havey 69; App Judge Booker v. Recorder’s Court (1967), 7 Mich 705, 707; People v. Grandahl App (1969), 16 Mich In 221, 224, 225. our Chattaway stated: 5Actually, against the defendant received eredit his old sentence days, including days arraign- the two between his arrest and appeal by been ment. No claim has he is entitled to credit for those two made on this the defendant days against the sentence im- posed appeal. on account of conviction here on response by people to the affidavits furnished the defendant department from submitted a letter addressed the director of the of corrections attorney stating: to the defendant’s “As of the date of September 8, 1966], arrest running time resumed [Hall’s] [on attempted breaking entering on the sentence oven he was jurisdiction April 5, to our not returned until 1967. We have a copy Judge in our of 2, letter file from Schemanske to Mr. Hall dated stating the'Wayne June county jail that time eredit for the time served waiting disposition robbery while eharge on the armed fugitive not allowed because Mr. Hall escapee was a from Michigan. Prison of the State statute Mr. Hall sentence. We Southern We believe that under the (MCLA 769.11b Supp 28.1083(2)] Ann 1969 Cum [Stat granted robbery should be credit the armed this cannot, course, apply that credit without an order from the court.” J. Opinion Levin, anything which makes in the statute is there “Nor consequence granting- that the fact relevant the plaintiff give the would be credit in this imposed against the sentences of the credit benefit in n we note In this connection cases. both plaintiff in the obtained which sentence credit *6 illusory him; both since benefit other case was of sentences run the other case was the plaintiff concurrently, in shorter sentence practical in effect absorbed imposed longer If the in this case. sentence against only one sentence have credit can (as contend), surely people he receive should longer imposed against sentence the credit him, value to rather would be of where it case, this imposed against in the shorter sentence than of no to him.” credit was value other where reasoning. adopt fact that re- this We against does not old sentences credit his ceived against present right negate armed to credit robbery robbery armed sen- sentence. Since por- longer term the unserved for a than tence is against the credit sentences, old to allow of the tions light would, the new and not sentences the old Michigan concurrency sentences, illusory to credit Hall is entitled an benefit. confer days. robbery for the 207 sentence the armed remanding- for resentence. no need see We 820.1(7) provisions it to the GCK Pursuant sentence be amended is ordered that the defendant’s period. grant day specifically him for the 207 credit part part. reversed \ffirmed in J. concurred. Beer, dissenting part (concurring ancl
Levin, P. J.
part).
armed
convicted of
The defendant was
handgun,
robbery.1
loaded
At the trial
28.797).
Supp
Ann 1968
(Stat
Cum
1 MCLA 750.529
Opinion by Levin, J.
during a search of the defendant when he was ar-
days
rested two
after the crime was committed, attorney’s objection.
introduced in evidence over his
The victim identified the defendant as the robber
identify
gun.2
but could not
There
nowas
evidence that the
found on the
defendant was used to commit the crime. Neverthe
agree
my colleagues
I
less,
with
that it well
estab
weapons
lished that where
or
are
tools
to com
used
might
mit a crime,
or tools which
have
pos
used to
it,
been
commit
found in the accused’s
proof
they
session,
be introduced without
very weapons
were the
which,
tools
in fact, were
in its
used
commission.3 It is also well established,4
2 At the trial
the victim was asked
good
whether he had a
look
gun,
replied
at the
to which he
“I
straight
didn’t look too
at it.”
color,
testified,
When
steel,
asked
he
“It was blue
I think it was.
I don’t know for sure.” He later testified that
it was black. The
to which he
revolver,
victim was then asked whether it was a
replied
* * *
that,
you
“I eouldn’t
you
tell
for sure.
All
know is it is a
gun.”
*7
gun
by
The vietim testified that the
used
holding
the
in
defendant
up
ground
him
was fired into the
warning.
as a
An officer of the
police
fendant
laboratory
scientific
gun
who examined the
found on the de-
days
a few
after his arrest testified that he did not examine
recently
it to determine whether it had been
fired.
3 Wharton,
1
Criminal
203.
Gillespie,
But see 1
Mich
igan
Procedure,
Criminal
461, p 572;
Law &
State
(1907),
v. Kehr
(110
149);
Iowa
NW
133
35
State
(1922),
v.
will Kilarjian (CA 2, 1967), 548. 379 F2d v. Horvath value.” Containing Cases, Less, 967, States More Also see United v. Beverage Bireley’s Orange 975; (CA 3, 1951), United 187 F2d Phillips (CA 1968), 306. v. 401 F2d States objection ground judge the The trial consider refused to the made, namely, would it that the on which was introduction judge jury prejudicial. The that was entitled see be stated the arrest.” be the so that it would aware of “circumstances the Courtney However, Michigan 137, 153, 154, v. tools, burglary Supreme Court that held years after the offense was when arrested accused’s 3-1/2 committed, by deciding not be considered could by the question of was committed accused. whether offense rather, but, his discretion Since the trial did not exereise enjoy assumption any discretion in proceeded on that he did not matter, possible abuse of discretion his we cannot review necessity pass ruling upon was admissible must objection admissibility un- evidence to the this the defendant’s aided judge stating appraisal the trial statement from ruling objection on an this of the factors to considered Thompson 783), Or P2d kind. See State infra, where, recognizing “in although most instances discussed admissibility must be of evidence of this character left court,” particular appellate case the court discretion the trial proposed judgment. Federal substitute its rules *8 mandatory ex- (see 8) make footnote eliminate discretion and outweighed substantially of evidence whose value is clusion prejudice, confusing of mis- by unfair the issues or leading jury. Apr Opinion, J. by Levin, objection to admission of the The defendant’s put ground gun on the it was not rele- was not that rather, in- asserted, that its vant. The troduction was prejudicial and, therefore, even gun should not have been admit- relevant, ted into evidence. people’s
The crux of the case was the identifica- testimony who was the tion of the taxicab driver robbery. introduction of victim of the armed The any jury gun way to aid the the properly evaluating not serve in did driver’s identifica- the taxicab testimony. tion handgun regarded signif-
Possession of a is portion reprehensible. icant Thus, of our citizens as there would was considerable risk that give weight undue to the fact that the defendant Hall owned a that basis resolve regarding him doubt the identification testi- mony. duty situation, Confronted with such a our judge and that of the trial is to balance relevance (its probative value) against of the evidence diversionary prejudicial impact. Thompson
Analogous on its facts
State
“Admittedly, involving weapons cases found on or about defendant when arrested and which can- weapon as the actual with identified which *9 J. by Levin, Opinion charged present the crime had been committed dif- questions admissibility. ficult of the absence of any identity of direct or indirect evidence or simi- larity may problem place it become the time and apprehended where the is accused place respect found in to the time and of the crime unique committed, or, it be that some weapon might character of which have been used respect weapon to commit the crime in to the found upon one accused of the crime would it ad- render gun per- missible. Thus taken from the of a hand standing son found over a murdered victim would be admissible even no other identification was available. accused has been attempting more situation when an Or usual secreting weapon observed or away weapon flight to throw weapon connection between the and the crime is definite.
“At the other extreme ais case like the one now under consideration. The accused was arrested in atmosphere. a normal home The com- crime was place mitted two months before at a about miles unique distant. The found and admitted was not distinguishable or from the other .22-caliber re- probably volvers that could have been found many homes within other Falls, Klamath city, at the time of arrest. There was testimony no was similar robbery that had been seen victim. There nothing alleged was to tie this revolver to the crime other than it was in the home the man charged committing with the crime. admissibility
“In most
instances
of evidence
of this character
be left
must
discretion
impossible
narrowly
trial court.
lineate the
It would be
de-
admissibility
exact limits
within the
varying degrees connection
could exist.
Imagination
hypothetical
can devise innumerable
defy
by any
cases which
solution
hard rule. The
question must be resolved within the facts of each
particular
case. In this
case, however, we think the
Apr
19 Levih,
Opinion by
J.
prejudicial
outweighed
character of the evidence
probative value.”
reasoning
Oregon Supreme
apposite
though the defendant in
even
the cited
two months after the
com-
arrested
crime was
mitted while
rested
this case the defendant Hall
ar-
days
after
two
commission of the crime. In
*10
ap-
both this
and the
case
cited case the accused was
prehended
contemporaneous
at a time which was not
with the commission of the crime6 and the connec-
tion to
crime of
the
the accused’s
largely conjectural.7
Supreme
The Iowa
has
also had occasion
to balance the value of relevant
con-
evidence
against
tribution to
the
solution of the fact issue
diversionary
prejudicial
its
or
effect
upon
(1958),
the trier of fact.
v.
249
State
Slauson
(88
806);
(1966),
Iowa 755
NW2d
State v. Wallace
(145
615).
Professor in his treatise the Law succinctly (§ p stated the issue *11 319): always enough. may “Relevance is not There re- question,
main the is its value worth what it costs?”8 8 Judge Rule Model Code of of Evidence —Discretion to Exclude Admissible Evidence: “(1) judge may in his discretion exclude evidence if he finds probative outweighed by that its value is the rish that its admission will “(a) consumption time, necessitate undue of or “(b) danger prejudice confusing create substantial or of undue misleading the or of issues the or jury, “(c) unfairly surprise party ground who has not had reasonable anticipate that such would evidence be offered. “(2) stating subject All rules are evidence to be admissible to this contrary expressly rule the is unless stated.” Similarly, proposed see Rule Uniform Rules of Evidence Act by Laws, National Council of 9A Commissioners Uniform State ULA, 624. p Proposed 4-03, Rule Rules of Evidence for the United Dis- States Magistrates (preliminary 1969) draft, trict Courts and March reads:
108 Mich by Opinion J". Levin, ' largely people’s or en is case based the Where people’s tirely the evidence,9 unlike on circumstantial probative will value the evidence here, the confusing danger generally outweigh the is the misleading jury. prejudicing For, the or or sues de that the case, needs to know in such a the capacity In crime. to commit the had the fendant Michigan where aware, I of which am cases the three accused the or tools found evidence person’s possession to show admissible held capacity the crime, the case to commit the entirely largely circumstantial. or accused was People (1913), People Courtney Mich 137, 153; v. 144; and v. Lahnala Winney 365.10 weapon Al- Carrying is crime.11 a concealed many jurors so words not told in were the crime, most that defendant had committed by required the law indeed, are and, know citizens weapon carrying a concealed is know, relevant, is not Mandatory. Although “(a) Exclusion outweighed by substantially probative is if value admissible its issues, misleading or of prejudice, of confusion of of unfair jury. Discretionary. Although relevant, evidence “(b) Exclusion substantially outweighed by if its value be excluded time, presentation delay, needless of undue waste considerations evidence.” it has been cumulative (see 8) suggested Although footnote evi- eireumstantial, may if dence, its value is exceeded direct or excluded “seemingly by eost, at common Professor MeCormiek writes that discretionary balancing process was limited circumstantial law” the 152, 319, McCormick, p n Law of 25. evidence. person I also note that each of these cases the accused possession weapon or as tools before to have been shown charged. with he commission of the crime which was well as after the In Lahnala before the was owned crime Winney stealing In the defendant admitted was committed. night guns In both before the victim was murdered. cases the Courtney at scene. were the same caliber bullets found resembling a satchel one seen the accused’s before burglary was committed was seized at the same tools crime time were seized. *12 . (Stat 28.424). MCLA 750.227 Ann 1962 § §Rev v. Hall by Levin, Opinion J. very people then, real sense what crime. In a prove was that were allowed this another conduct on occasion was the of a man. conduct had generally12 law excludes evidence similar
The and transactions both civil and crimi- occurrences evidence nal not because the would be irrele- cases, of fact vant, but because of trier conclude that “with all that smoke there must will a fire.” policy unnecessarily general This eroded allowing the kind that was of evidence used in Experience that when in this case. tells us doubt, very may and there well have been reasonable doubt guilt considering of the defendant’s in this case testimony circumstances, and conflict resolve that doubt on the basis put before it that the defendant extraneous a bad man. people The did not seek to build their case upon Hall circumstantial evidence (e.g., or other tools with which commit the identifying clothing13 and of the stolen crime, etc.). goods, The fact that the de relevance of the rele fendant owned was a theoretical people’s theory vance unrelated to in this case. The fact that the defendant owned people proofs. tied in to other could not prevailed by proving only have that the defendant p 50, Law 1954 Rev § general principle Law, There 12 4 As to the et Callaghan’s Michigan Pleading are, seq.; 28.1050). pp 969-979. admissibility 29 Am Jur course, chs 17 and 18. See MCLA appears large 2d, Evidence, wearing number of texts apparel, see & Practice, just exceptions cited et seq., 768.27 22A § 36.205, p to the stated CJS Criminal McCormick, (Stat et et Ann seq., seq. *13 [Aug- Opinion by Levin, J. capacity gun the to commit a and thus had the owned crime.14 logical gun ownership of a had no
The defendant’s any the other evidence in or rational connection to proofs part composite That of a case. fact was guilt have been from which the defendant’s could a owned deduced. The fact that the defendant suspended jury, completely un- was left before the any It related to other evidence in the case. served purpose, jury, but one to confuse and mislead the identity, to from to divert it the central issue of prejudice jury against defendant, the the to resolve jury regarding the doubts entertained testimony fact, identification le- the basis gally irrelevant, that the defendant was a bad man.15
Having people’s theory, in mind the the minimal gun, pre- relevance the the diversion from the prejudice dominant issue—identification—and the accomplished by the defendant introduction of the gun, I am convinced that on gun should not have been introduced. the facts this case the my agree colleagues’ disposition
I with of the sen- Judge credit issue as tence set forth Holbrook’s opinion. not also offer eireumstantial seek to is a missible circumstantial the crime that should other substantial sought issue relevaney there is a 14 I dragged It has been said that labels the defendant do not, however, to be the case.” prove shortly (see not mean to be understood as is other logical before the might proffered evidenee, proved footnote their evidence; after circumstantial have or rational eireumstantial ease and a matter of be offered unless the Jones on Evidence jury. the been used to commit through commission as a bad man “in determining evidence. connection between the fact which is such evidenee. Red evidence. Circumstantial identification question a of a fact which case, If, saying (5th presence (e.g., crime near the scene with people for to be resolved is whether ed), it dispute concerning example, that when guns, testimony they may herrings has can tie it near the scene of gun may is not burglar been made an pp 271, 272. a defendant should not the be people tools) with only ad
APPENDIX problem balancing the value of prejudice, of undue con- evidence with misleading presented is issues, fusion (and particularly when de- whenever witness fendant) with criminal record takes the stand sought regarding question it him his criminal enabling ostensibly purpose record jury credibility as a witness. *14 say past of It is safe to that the use criminal customary credibility record to attack has become so challenged. rarely Recently, it our however, affirming jury in a of no verdict cause action personal injury judge in a case held that the trial did refusing his abuse discretion to allow cross- concerning prior examination of the defendant traf- Taylor fic convictions. Walter violation App appeal granted Mich 15 leave Goldberg (1936), on 773. We relied Zimmerman v. (p 364): Mich 134, and also observed “Michigan suggested follows the rule Rule 303, permits judge Model Code of Evidence which a trial in his discretion to exclude if he admissible evidence outweighed by finds that its value is risk that its admission will create substantial prejudice. § undue McCormick, See pp pp and 319-321.” 87-94, provides: The relevant statute person giving “No shall be from excluded by matter, criminal, civil reason of ** * * * * crime ; but such conviction may purpose crime drawing be shown for the question credibility except of such witness, as provided.” (Stat is hereinafter MCLA 600.2158 27A.2158). Ann Rev App
In Luck v. United States DC 151 763), Appeals F2d the United States Court of for the District of in a Columbia, two-to-one deci reading fundamentally sion, held, under statute Michigan’s, judge may, does as that a trial in the prior discretion, exercise of crimes. the exclude evidence of holding emphasized so the court (p 768): statute 348 F2d “says, ‘may,’ op- in effect that the conviction posed to ‘shall,’ admitted; and we think the choice significant. of words in this instance is The trial required impeachment by prior court is not to allow every conviction time a defendant takes the stand own statute, defense. The view, our leaves operation judicial room for the of a sound discretion upon play they circumstances as unfold in particular may ease. There well be cases where judge might the trial think that the cause of truth helped by letting would he more hear the story foregoing than because of the defendant’s opportunity prejudice that founded fear of upon prior conviction. There well be other where cases the trial believes the prejudicial probative issue ard impeachment outweighs effect far the conviction to the prior relevance of the credibility. last is, course, This stand- *15 judges every day apply which trial in other utility ap- and contexts; we think it has both and plicability (Emphasis by Court.)16 in this field.” Luck App DC App [125] F2d F2d in 332 (394 F2d abuse of discretion was found in Evans v. United States [125] States Court [16] admitting App [16] App An (381 639), DC DC 343 517), rule. (365 [114] extensive DC 224 DC F2d and the trial In Jones F2d (397 [220] (383 evidence 894) ; Barber v. United States Appeals (370 (370 949); F2d F2d jurisprudence Williams v. F2d 675). Compare F2d 936); Lewis United States the defendant's 246) ; 242); was found to have abused his discretion Hood the District of Columbia v. v. Gordon v. United States has been United States United States Covington v. Brown v. United States United (1968), (1968), prior developed by v. States conviction record. No United States [129] [131] (1967), (1968), App App (1966), regarding [129] [327] DC 193 DC 88 (1968), (1967), the United 125 App App (1966), (1966), App (402 (392 [127] [130] DC DC People v. Hawthorne In State v. NJ A2d Jersey Supreme 682), of New Court construed to both our and statute, similar statute the stat- Luck, after careful and, construed considera- ute adopt decision, tion of the Luck refused to it! using “may” concluded that word
Court legislature Jersey any New to authorize intended litigant option at to introduce past and, thus, witness’ record a trial conviction enjoys no discretion to exclude such court evidence. regard Both the Luck and the Hawthorne Courts their ed task be the determination of the correct regard of a construction statute and did not them possessing any power independently selves statute to declare whether such evidence is admis Michigan Supreme In sible. contrast, Court (On Rehearing, 1964), v. Peuler Perin Mich power held 531, that it had the to declare without making further force statute inadmissible evidence violation; of Court stated conviction of a motor vehicle
(p 541) : enacting amending judicial “The function of and practice procedure rules has been committed exclusively (Const 1908, this Court 7, §5; art 5); Const art function with which the legislature may not meddle interfere save as may acquiesce adopt judi- for retention at cial will.” Recently, Eldridge citing Luck, our Court, reversed defend- rape statutory among
ant’s conviction of for, other prosecutor’s questioning alleged reasons, of an gestae regarding res taking witness his conviction of girl complained indecent liberties with the who Eldridge. the defendant Eldridge Burg we referred to v. United States (CA 1969), 406 F2d 235, where the defendant’s *16 19 Míen
1Í4 in to for theft was held admissible conviction earlier robbery. judge adhered for bank One his trial always ad rule that such evidence is the orthodox purpose impeaching a witness’ missible for the Credibility Another even he is the defendant. Luck, approach judge adopted but correctly judge dis the trial exercised his held that unnecessary it The third cretion. express opinion. See, an United States also, (CA 1968), 270; 401 F2d United States 2, Palumbo v. Hildreth (CA (dictum); 1967), F2d 328 Dunn, P2d 91 Idaho State v. 88, 97) (Spear, concurring). J., generally al- are critical rules Commentators lowing prior ad- to be conviction record impeach when he takes mitted to his stand witness. Professor McCormick points present out that the work on See, also, Note, accident. Other rule is an historical Crimes Balancing and Other Evidence at Trial: of (1961); pp Note, L 774-778 70 Yale J Matters, Admissibil- Inherent Problems Constitutional ity pose Pur- of Prior Record Evidence Conviction Impeaching Credibility Defendant (1968). L Cinci Rev Witness, (Rule Evidence Act Both the Uniform Rules of 607) p Model 9A and the Code Evidence 21; ULA (Rule 106), of such evidence would eliminate the use case unless he first a defendant a criminal solely purpose for the evidence admissible introduces supporting credibility limit and then would involving a crime convictions of such evidence to “dishonesty or false statement.” suggested present rule uncon-
It has been right stitutionally to take chills an and that it “effects stand his own defense17 (1968). Note, L Rev 168 See 37 Cinci *17 115 1969] v. Stowers Wolodzko disinction anomalous between defendants with and a those without criminal record in the exercise of the
right
testify
in their own behalf.”18
the stand
1960),
L20 Ed
United
1968),
(68
(88
(226
(81
A defendant
S Ct
S Ct
S Ct
See
needlessly penalize
NE2d
392 F2d
280 F2d
States v. Jackson
S Ct
Note,
2d
756,
967,
499, 507,
138) ;
his own behalf.
1229,
586, 590);
70 Yale
5 L
19 L
172, 180; People
592, 595;
Simmons United States
v. 14 L Ed 2d
a criminal case has a constitutional
Ed
92 L
Ed 2d
L
2d
J
Griffin
assertion of constitutional
Ed
783).
763,
(1968),
Ferguson
1247) ;
Cf.
106).
682, 694);
Cases
v. Luna
390 US
Groshart
(1968).
re Oliver
California
v.
holding
Georgia
MacKenna v. Ellis
570,
v. United States
(1968),
(1948),
unconstitutional
(1961),
583
390 US
333 US
(88
Ill
rights
right
380 US
STOWERS v. WOLODZKO Appeal Evidence—Jury—Verdict. 1. and Error — Appeals may upset Court of jury’s findings unless the evidence support is insufficient the verdiet and the overwhelming verdict is weight of the evidence. Detention—Hospitals—Treatment. 2. Mental Health — patient Treatment of temporarily hospital state detained by a pending court order a determination of mental disease by statutory authorized statute but no authorization exists for patient similarly private treatment of a detained hospital (CLS 1961, 330.21, as amended PA No § References Points Headnotes 2d, Appeal seq. 5 Am Jur and [I] Error 833 et § [2, 2d, 40 Am Hospitals Asylums Jur and 3] 12. § 2d, Incompetent 41 Am Jur Persons 42. §§ [4, Jur, Physicians 41 Am Surgeons and 71. § Jur, Physicians Surgeons Am and 111. [5] [7 10] §§ 2d, Imprisonment 32 Am Jur Palse 75. — 2d, Hospitals Asylums 40 Am Jur 19. Jur, Physicians Surgeons Am 108. [11] [12] 2d, 22 Am Damages Jur 367. §§