281 N.W. 384 | Mich. | 1938
Lead Opinion
Appellants and others were charged with conspiracy to murder one Arthur Kingsley, of Highland Park, Michigan. The case was heard by a judge of the recorder's court of the city of Detroit without a jury. Seventeen defendants were originally named in the information. Of these, one was released on an ordernolle prosequi, and seven were acquitted. The remaining nine were found guilty and they have appealed.
Plaintiff claims that the defendants, as members of an organization, conspired together for the purpose of killing Kingsley, a publisher of a Highland Park newspaper, who was consistently criticising and opposing the candidacy of one of the defendants, N. Ray Markland, who was running for mayor. As the prosecution admits, the story is almost incredible and the acts of the various defendants almost unbelievable, were it not, as they claim, for the positive, direct and interlocking testimony of the people's witnesses and the defendants themselves. Defendants claim that the findings of the trial court were against the great weight of the evidence. The record has been examined with very great care. The case resembles somewhat that of *634 People v. Pettijohn,
The sole evidence implicating defendants Foster, Gunn, James and Wellman was the testimony of Dean who is serving a life sentence for murder. Each of these four defendants took the stand and denied Dean's testimony in toto. His story is further weakened by contradictions and the conflicting testimony of other witnesses.
Dean testified that Foster gave him a gun and was present at five meetings of the defendants at which plans were made to kill Kingsley. The chief of the Highland Park fire service testified from his records that on one of the dates mentioned by Dean, Foster was under orders to remain on call at his home. Foster testified that he had remained at home on that occasion. Dean named other defendants as also being present at three of the meetings, yet these others were acquitted. Foster is an honorably discharged veteran, having served overseas *635 during the war. He had never been previously arrested and three character witnesses testified in his favor.
The evidence against defendant Gunn is particularly weak. Dean testified that Gunn drove him to meet a Highland Park police scout car on Second boulevard, where Dean made arrangements for an escape with two police officers. These two officers were defendants in this case. They denied ever meeting Dean and were acquitted. Dean testified that on several occasions he followed Kingsley in an automobile, intending to kill him, but that Kingsley evaded him. At the trial Dean claimed that Gunn drove the automobile. Yet at a previous hearing, he had stated that he did not recall who was driving. Dean testified that on one occasion, he had given Gunn his .45 revolver to take home and that Gunn later told him that he had accidentally fired it into a washing machine so that it ricocheted around the tub and burned his arm. A ballistics expert who examined the machine testified that it bore no marks showing that a gun had been fired into it, and furthermore, that a .45 bullet could not ricochet in the manner claimed. Neighbors of Gunn testified that they had heard no noise. Gunn told a straightforward story on the witness stand and character witnesses showed that he was a man of good standing in the community where he had lived the greater part of his life.
Dean claimed that defendant James had been with him on several occasions when they attempted to find and kill Kingsley, yet he admitted on cross-examination that he had previously stated that he did not remember who went with him. The principal of a night school testified from his records that James was in school on one night that Dean testified that James was with him. Dean asserted that *636 James showed him a hole under the back seat of the car in which they could hide the gun after the murder. A garage man testified that he had made the hole for the purpose of making repairs. A police officer, who testified in regard to the hole, admitted that Dean did not know of the hole until after James was arrested. No part of this officer's testimony connected James with the conspiracy.
Dean had made prior statements contradicting his testimony against defendant Wellman. Dean testified that Wellman came to Pontiac to pick up Dean at the police station there, where he had been talking with defendant Pierce. Pierce denied meeting Dean or Wellman in Pontiac and was acquitted. Both James and Wellman bore good reputations and their good character was testified to by several witnesses.
We, therefore, have four defendants denying Dean's unsupported and unsatisfactory testimony implicating them. Surely a man's previous good reputation should stand in his favor when he takes the witness stand and denies the accusations of a self-confessed felon, unsupported and contradicted by other evidence. We are particularly impressed with the fact that the evidence against these four defendants who were convicted was no stronger than that against some of the other codefendants who were acquitted. The finding against defendants Foster, Gunn, James and Wellman was against the weight of the evidence and must be reversed.
Against the defendant Howard, there is some other testimony besides that of Dayton Dean. One witness testified that Howard told him that he was to kill Kingsley and gave him $50 for expenses. Another witness stated that Howard had said to him, "You know * * * what is going to happen to Mr. Kingsley." In the case of defendant Markland, *637 Kingsley testified that Markland had threatened him. Another witness testified that Markland told him that he would secure a job for him if he would kill Kingsley. In the case of defendant Clark, other witnesses besides Dean implicated Clark in the activities which the prosecution connected up with the conspiracy. In the case of defendant Lupp, the witness Smith testified that Lupp told him that he was to kill Kingsley and gave him a gun for that purpose. Later Lupp "bawled out" Smith for failing to kill Kingsley. Another witness testified that Lupp was at a meeting which the prosecution claims was held in connection with the conspiracy. There is similar support for the evidence against defendant Hepner. All of these defendants, except Hepner, took the stand and denied guilt and there is some evidence to support their denial. Other witnesses testified to their good character. While the evidence against them is sufficient to support a conviction, nevertheless, in view of the closeness of the question of whether the conviction is not against the weight of the evidence, even a slight error may have had a determining effect against them. If there is such, they should have a new trial.
Counsel for defendant Hepner have consistently claimed that he was insane at the time of the trial and not competent to be tried. For that reason, he did not take the stand in his own behalf. A stenographer, called as a witness by the prosecution, produced a statement that he took from Hepner on June 12, 1936, at the office of the prosecuting attorney at 1:45 a. m. Hepner's statement implicated him in the conspiracy, and also defendants Clark, Howard, Markland and Lupp, as well as another who was acquitted by the trial judge. Upon cross-examination of the stenographer, it developed that Hepner had made other statements which were *638 taken down by the witness. One taken at 7:50 p. m. of the evening before and another at 1 a. m. were not relevant to the case. However, a statement was taken at 1:10 a. m. only 35 minutes prior to the taking of the statement which was introduced in evidence, and this statement was admitted to be relevant to the instant case. When this fact was brought out, the attorneys for the defendants asked the court to order the witness to transcribe the other statement. The court ruled that it would do so if the attorneys kept themselves within the rules of the Supreme Court of the State of Michigan. The following day, the prosecuting attorney stated that he had learned for the first time, through the cross-examination of the stenographer, of the existence of the prior statement, that he had had it transcribed and that he was willing to submit it to the counsel for the defense on condition that they introduce it in evidence for the defendant Hepner. One of the attorneys for the defendants objected contending that the way to introduce the statement was on the examination of the stenographer who took it, and that he would not be willing to receive the statement on the conditions imposed. The court did not order the statement to be introduced and stated only that the Supreme Court of the State set forth the proper way to introduce the statement.
The demand of the attorney for the defendants was proper. If the prosecution introduces any part of a prior statement or confession of a defendant, it should introduce all of it.Walters v. State,
It has been held that the prosecution need not introduce the entire statement provided the defendant is given an opportunity to do so if he wishes. Ingram v. State,
The prosecution contends that Hepner must have known what was in his statement, and, therefore, it was not error to refuse to permit counsel to examine it, citing People v. Parisi,
Hepner's 1:45 a. m. statement also implicated defendants Clark, Howard, Markland and Lupp. It is true that Hepner's codefendants could not have introduced Hepner's statement in evidence on their own account. Cole v. State, 104 Tex.Crim. Rep. 533 (
Defendants Foster, Gunn, James and Wellman are entitled to a new trial because their conviction was against the weight of the testimony. The other defendants are entitled to a new trial because of the error in excluding the statement.
The case is remanded for a new trial.
WIEST, C.J., and BUSHNELL, SHARPE, and NORTH, JJ., concurred with BUTZEL, J. *642
Dissenting Opinion
I agree this case should be reversed as to the defendant Roy Hepner.
The people introduced a statement said to have been made by Hepner to a stenographer at 1:45 a. m. This statement was transcribed by the stenographer and introduced in evidence. It was admitted defendant Hepner had made another statement at 1:10 a. m. the same day to the same stenographer. This statement was transcribed by the stenographer but excluded by the trial court. Defendant did not for this reason have such a fair trial as he was entitled to.
The statement introduced was competent, if at all, on the basis of an admission or declaration of defendant. It was the duty of the prosecutor to produce both of these statements alleged to have been made by the defendant and to lay them before the trier of the facts whether their tendency was to establish the guilt or innocence of the accused.
"The only legitimate object of the prosecution is, 'to show the whole transaction, as it was, whether its tendency be to establish guilt or innocence.' The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner's guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community." Hurd v. People,
"It has long been the settled law of this State, at least since the case of Hurd v. People,
" 'To show the whole transaction as it was, whether its tendency be to establish guilt or innocence.' " People v.Etter,
"As explained in Hurd v. People,
"It is the duty of the prosecuting attorney to furnish all the evidence within his power bearing upon the issue of guilt or innocence, in relation to the main issue, or to give some good excuse for not doing so." People v. Swetland,
"The duty of the prosecuting attorney is not discharged with the mere production of the witness. As is said inPeople v. Swetland:
" 'It is the duty of the prosecuting attorney to furnish all the evidence within his power bearing upon the issue of guilt or innocence, in relation to the main issue, or to give some good excuse for not doing so.' " People v. Germaine,
If it was the duty of the prosecuting officer to furnish as a part of the people's case and lay before the trier of facts both the statements alleged to have been made by the defendant Hepner, he did not discharge that duty in presenting one statement and suppressing the other. All legitimate presumptions were against the people if they failed to produce such testimony. Every intendment should be in favor of the opposite party. Cole v. Railway Co.,
In any event, the defense should have been permitted a full and searching cross-examination in relation to the statements alleged to have been made by the defendant. People v. Liphardt,
"In a definition of the limits of this right, there may be noted three general corollaries of the principle on which the rights rest, namely: (a) No utterance irrelevant to the issue is receivable. (b) No more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable. (c) The remainder thus received merely aids in the construction of the utterance as a whole, and is not in itself testimony."
This is the rule in 2 Chamberlayne on Modern Law of Evidence, § 1297.
"Where admissions of the accused are offered, he has a right to have the whole conversation admitted, *645 whether the same consists of self-serving statements or not; the test being whether they form a part of the conversation proved by the people." People v. Bowen, supra.
There, the court approved the language ofCommonwealth v. Trefethen,
Defendant's counsel were entitled under the facts as disclosed by this record to the production, and an opportunity to examine, both of the statements alleged to have been made by the defendant Hepner which were transcribed by the stenographer to whom they were made and in the possession of the prosecuting officer. People v. Dellabonda,
For suppressing one of these statements alleged to have been made by the defendant Hepner, not presenting it to the court and to counsel for the defendant, and denying cross-examination in relation thereto, the case should be reversed as to the defendant Hepner. Affirmed as to other defendants.
CHANDLER and McALLISTER, JJ., concurred with POTTER, J. *646