*1 67 1968] v. Herrera.
PEOPLE HERRERA. Opinion op the Court. Corpus 1. Delicti —Evidence. Homicide — Testimony by as to unnatural cause death coroner found small wound deceased’s chest and witnesses who bleeding deceased, described statements made him fol- lowing wounding, stop and actions taken them held, bleeding corpus sufficient to establish the delicti of the degree (CL 1948, crime of murder in 750.3[7]). the second § Corpus 2. Same — Delicti —Evidence. corpus sufficiently delicti of a homicide is shown finding body of the dead and evidence of an unnatural cause of death. Preliminary Corpus
3. Criminal Law — Examination — Delicti— Probable Cause —Evidence. presented preliminary Evidence person at examination aof charged permit examining with crime must be such magistrate to find that a crime has been committed and that probable there is cause to believe the accused committed the crime order to bind accused over for trial. [8] [1, [3-5] [6] [7] [9-13] [19-21] [24] [23] [22, [17,18] [14^16] [25] 2] 21 21 21 Am Jur 21 Am Jur 29 Am 40 Am 21 Am ion Evidence Opinion Evidence 86. Am Am Jur Am 53 Am 31 Am Jur 31 29 Am Am Jur Am Jur Jur, Jur Jur Jur References Jur 2d, 2d, 2d, Jur, 2d, Jur 2d, Trial 2d, 2d, 2d, Criminal Law Criminal Law Criminal Law 328. §§ 2d, 2d, Expert Criminal Law 328. Evidence Trial 2d, Homieide Criminal Hospitals §§ Expert § Evidence 796, §§ 661, Law 449. and §§ 354; Points and §§ §§ § 662. 432, § 802. Opinion § 333, 335, 333, Asylums 354; .31 Am 433. 344. 31 Am Jur Evidence Headnotes Evidence Jur 337. § 43. 2d, Expert §§ §§ 2d, Expert 88, 54, 92-94. 55. Opin- and
66- Evidence—Lay Preliminary Examination — 4. Same — Witnesses. Testimony expert preferable preliminary at of a medical exami- charged physical injury per- where crime involves to a nation necessarily son, laymen incapable are not testifying} but *2 competently surrounding as to observable circumstances of an incident, examining magistrate may an and form a belief lay testimony based on that such a crime has been committed. Evidence—Preliminary Examination. Same — plainly All faets incidents which relate to an offense are in preliminary charged admissible examination of one with crime. Evidence—Expert 6. Same — Witness. requesting of people’s Denial defense motion names of the expert witnesses who would to rebut the defense of temporary insanity in- degree trial of defendant for second murder her husband was abuse of discretion of trial prejudicial poliee officers, court or to defendant where expert witnesses, were not appeared and whose names on the information, appeared testified defendant sane at time being interrogated she was after her husband was stabbed (OL 1948, 750.317). § Witnesses—Cross-Examination—Credibility. 7. Same — a right Cross-examination of witness is a matter of when it relates in facts, either to faets issue or relevant and refusal to allow prosecution cross-examination of witness in trial for second- degree insanity murder on issue of claimed of defendant is (CL 1948, 750.317). error § Witnesses—Cross-Examination—Credibility. 8. Same — right prosecution Denial of cross-examine witness relative to facts and eircumstanees connected with defense prosecution second-degree in murder is error but was ren- dered subsequently harmless where defendant examined the witness concerning as her own relative to matters which she erroneously right was (CL denied the cross-examine 750.317). § Hospital Admissibility. Evidence — Records — in regular Data obtained practice course medical and entered hospital in regularly upon by records are pro- relied medical in important fession matters no less than those involved in lawsuits, and their exclusion in court leads to error rather (CLS 1961, 600.8146), than truth § v. Herrera. Hospital Admissibility. 10. Same — Records —
Hospital records relating are admissible to show facts to medical history patients in treatment and criminal as well as in eases, physical where patient, civil condition of one crime, (CL 1948, 750.317). in accused issue Hospital Regular 11. Same — Records — Course Business. in
Hospital writing records regular made course of evidence, are acts, events, business admissible as to occur- hospital rences or transactions incident treatment, or care regular when it course of business to make the record (CL 750.317). Hospital Diagnosis—Admissibility—Crimi- 12. Same — Records — nal Law. diagnosis
A hospital contained record is not admissible diagnostician in a criminal ease where is unavailable for cross-examination; diagnosis the admission an unsupported in keeping would not be with procedures. criminal trial -Evidence—Hospital 13. Criminal Law — Records. *3 second-degree
Refusal of trial in trial for eourt murder to admit hospital into evidence records as to admission of defendant hospital, apparent physical condition, to her her consump- and phenobarbetal tion an unknown amount of was error where insanity of temporary raised, defеnse preju- but did not dice defendant doctor who where treated defendant on her hospital days in readmission to later testified later the trial 750.317). (CL 1948, as to her condition Evidence—Treating Psychiatrist Opinion—Personal 14. Same — — History. psychiatrist may give testimony opinion A of his of criminal sanity upon partially personal history defendant’s a based given treating psychiatrist. him if is the to defendant he Psychiatrist—Diagnosis—Patient’s 15. Evidence — Personal His- tory. making diagnosis psychiatrist A in a must patient’s use a verbal history, objection description of his and medical and life going being charged patient after crime will to doctor with self-serving upon make can overcome reliance statements be ability experience, psychiatrist’s expertise, and to detect liars. [12] 67. op History Psychiatric Pa- Examination — Law —
16. Criminal (cid:127) tient. history testify to permit psychiatrist to refusal Trial court’s she her after given he examined him defendant when present him permit husband refusal stabbed her and upon her medieal was based diagnosis defendant which his psychiatrist a denied the history of her and his examination diagnosis patient’s his mental proper tool essential to a vital prejudicial to defendant’s and was error but condition an permitted to form right trial doctor was to a fair where her mentally ill she stabbed opinion she was date question composed upon hypothetical based husband to death already witnesses. elieited from other facts op Hypothetical Opinions—Expert Form Witness — 17. Evidence — Question. calling opiniоn expert witness need not for the of an Questions discretion, judge, so hypothetical form unless the be 1963, 605). requires (CGE Hypothetical Court. Law — Criminal Question —Discretion requiring held, abused its discretion not to have Trial court examining psychiatrist question in hypothetical a the use of and her husband after she stabbed defendant who examined time of the offense. mental state at the opinion as to her formed Nonexpert Witness. Condition — 19. Evidence —Mental ample means to observe and had nonexpert witness who has A person mental condition of as to the conclusions form are his conclusions pertinent facts on whieh testifies to person. as to state his conclusions Depend- Opinion Nonexpert Witness — Criminal Law — Sanity. ant’s to thеir police, officers as Admission of , brought sanity one arrested defendant where of defendant’s joined in questioning second police station where the her to if there "may an discretion court defendant, be abuse of to form ample opportunity for the witnesses was not opinion. Sanity. -Nonexpert as to Witness — 21. Same — *4 to defend- testijnony police officers who talked of of Admission minutes, appeared sane to that she 1 hour and 10 ant for interrogated shortly she stabbed after time she was them at the held, court first an abuse of discretion where her husband not to ample opportunity for witnesses there was determined sanity. opinions of defendant’s form v. Herrera. Insanity—Instructions. 22. Homicide — disposition post-verdict to instruct on refusal
Trial court’s murder, if defendant, charged second-degree found with of held, (CL 1948, insanity, guilty by not error reason of not 766.15c). 750.317, §§ Degree Optense oe —Instruction. 23. Criminal Law —Lesser degrees charge in lesser of an offense relation to A court must support to convic- which would tend there evidence where degree (CL 1948, 768.32). of a lesser tion Dissenting Opinion. Kavanagh,
T. G. P. J. Insanity—Disclosure
24. Homicide —
Witnesses.
motion
denial
disclosure
witnesses
court’s
Trial
of defense
for
of
question
sanity
hy
on
he called
State
to
of defendant
second-degree
prevented
charged with
murder
the defense from
preparing
prejudicial
properly
cross-examination and was
§750.317).
(CL 1948,
error
Psychiatrist—Opinion—Insanity—Hypothet-
Law —
Criminal
ical Question.
psychiatrist
Permitting
his
defensе
sanity
limiting
not
did
cure
error
defendant’s
hypothetical question.
examination to a
Guilty
op Insanity
Reason
—In-
26. Homicide —Murder—Not
structions.
charge
second-degree
pleads
guilty
A
defendant
hy
insanity
reason
is entitled to have instruction
murder
providing
given
person
a statute
tried
murder
for
hy
acquitted
reason
shall
committed to
he
criminally
(CL
hospital
766.15c).
insane
State
(Fred
Saginaw,
J.),
from
J.
Borchard
Appeal
(Docket
at
7, 1967,
Lansing.
November
Submitted
26, 1968.
appeal
Decided
Leave
June
2, 848.)
No.
in the circuit court of the mans laughter1 of her husband in the Bar in Wonder city Saginaw night July 13, She appeals. The facts relevant to the case will be out lined within the framework of our discussion of the alleged several issues occurred error defendant to have during course her trial. preliminary hearing pursuant A was held to CL (Stat § 28.922). § 1948, Ann 766.4 1954Eev Defend alleges ant that error occurred at this time when of a medical people produce testimony did not expert as to an unnatural cause of the husband’s resulting corpus death, in a failure to establish the degree.2 autopsy delicti of murder in offense the secоnd pathologist performed A medical had an testify. but he was not called to The death certifi pursuant cate was introduced to CL 1948, 326.6, (Stat as amended PA No 202 1962, Ann 1965 Supp 14.226), identity, Cum to show the occur time and rence, although death, but not the cause of death, as to the cause is included. More was adduced. The nonmedical coroner was called and he described a small wound (cid:127) found in the husband’s chest. Several witnesses they gave testimony concerning pro
were called and bleeding fuse of deceased, statements made de following wounding, ceased and actions taken [1] CL CL 1948, 1948, 8 8 750.321 750.317 (Stat (Stat Ann 1954 Ann 1954 Rev 8 Rev [8] 28.5531. 28.549'). People v. Herrera. Opinion of the Court. stop bleeding. In the ease of of them one it v. Jackson is stated: corpus suffiсiently- delicti homicide cases “In body finding by testimony the dead
shown and evidence unnatural cause of death.” of an *6 preliminary hearing is held to establish the A magistrate examining that a satisfaction crime prob- that there committed and has been the accused committed able cause believe supra. Jackson, the crime. pref- expert testimony is indeed of medical charged in- in a situation where the crime physical
erable injury, we do not find that error but volved preliminary hearing when there is in this existed competent of an un- and substantial evidence other injury. Laymen are not cause of death or natural competently incapable testifying as necessarily surrounding anof inci- circumstances observable magistrate examining would err dent so believing committed based that a had been crime testimony. and incidents which All facts their plainly 1 are admissible. See relate to offense Michigan Gillespie, Law and Procedure Criminal ed), (2d p § 303, 361. requested names of
Defendant’s counsel testify people’s expert to rebut who would witnesses insanity, temporary his motion but defense of police officers court. Two denied the trial was appeared to them at sane that defendant did shortly interrogated being after the time she was her appeared and their names stabbed, husband was expert They witnesses were not on the information. nor not abuse its did discretion the trial court denying motion. prejudice defendant at defendant, was the sister of Flores, Rosia injured. was She was when deceasеd Bar Wonder 12 Apr Mich op the Court. prosecutor indorsed on the information she testified on direct examination, but the trial permit court refused to defendant’s counsel to cross- alleged insanity examine her on the issue defendant. This refusal constitutes error as the right to cross-examine as to facts issue or rele broadly granted Michigan subject vant facts is generally to the discretion of the trial court as to credibility of the witness. Schwartz v. Triff people allege 379. However, the prejudicial that this error is not to defendant as she later Rosia called Flores her own witness and sub given stantial on the issue agree at that time. "We with the observation made Appeal p at Am Jur, and Error, 1132, 651: party “And where has been denied the trial right court the to cross-examine a witness relative to facts and circumstances connected with the mat- brought ters out on the direct examination, the error party be rendered harmless if such examines *7 during subsequent progress the witness the of the concerning cause relative to the matters which he erroneously right was denied the to cross-examine.” fully given opportunity Defendant was develop concerning of Mrs. Flores insanity the issue of and we hold this error of the nonprejudicial trial court to be to defendant. See Harrington Angeles Company (1903), v. Los R. (74 p 238). Cal 514 15, 63 LRA attempted
Defendant to offer into evidence emergency Mary’s exhibits of Hospital room records of St. alleged insanity; to show her these records hоspital described her admission to the 2 occa- prior sions, 4 months to the death of her husband, consumption because of her of an unknown amount phenobarbital, contemporaneous diagnosis awith of her condition. The court refused to admit these People v. Herrera. the Court. during purpose any time for exhibits at being such that of the trial, of the course prove diagnosis or are not admissible records history of the case. people v. Lewis case of cite the proposition hospital rec- for the
294 Mich entry the business under are never admissible ords (Stat § Ann 1962 Rev 600.2146 statute, CLS 27A.2146), because the accused case, a criminal in right con- to he his constitutional (cid:127)will he denied against i.e., maker him, witnesses fronted present hospital in record that the desire to we believe However, courtroom. possible concerning the the best evidence obtain require plea that she would accused’s hospital portion rec- of such to introduce be able proper preparation following founda- of a ords agree Weihofen, with the statement tion. We ch Defense, 6, 3, Disorder as a Criminal Mental p327: regular of medical course in the “Data obtained (hospital)
practice are records entered on such profession upon by regularly the medical relied important than those involved no less matters error in court leads to their exclusion lawsuits, and than to truth.” rather Lewis Case that the limitations of believе
We were intended to particular apply facts of accused of was the defendant that case wherein practicing in an abortion a license medicine without hospital records showed where the case, previously in con- complaining treated witness pregnancy. as the In cases such nection with hospital present, physical rec- concerning *8 condition, show generally admissible ords are held to he history relating medical treatment facts Arp 12 Mrar the Court. patients of- in criminal as well as in civil cases. See p Criminal CJS, Law, 851, objection people they” is that “can’t the record”, cross-examine but this is not the reason given by excluding in the Court Lewis Case for (cid:127) objection such evidencе. Rather, is that against is unable accused to confront the witnesses objec- him when such records admitted, are so this qualified tion must be where the accused himself part seeks to admit the records as an essential insanity. safeguards a defense A number of have hearsay objection by insuring evolved to remove the regularity ordinary the entries in made the duty by persons course business whose it is to being duly make them, the records authenticated having by person having knowledge been made Michigan set the facts forth therein. The business supra, interpreted statute, entries is as follows: authorizing “Under the statute the admission of regular records made course of a hos- business, pital writing regular record made in and in the course of business is in evidenсe, admissible regards events, or acts,. occurrences transactions hospital incident care or treatment, when it regular was the course of business to make such Callaghan, Michigan Pleading record.” 5 and Prac- (2d ed), p tice 36.572, 216.
Defendant would have this Court extend the’stat- diagnosis hospital ute include contained Shinabarger record as admissible in evidence. See Phillips support 370Mich 135. do not We present this contention a criminal case such as the diagnostician one. The unavailable cross- examination and we believe that the admission of unsupported diagnosis keeping would not be in procedures. with sound criminal trial Two exhibits judge.' were refused admission the trial We' find *9 v. Herrera. Opinion of the Court. concеrning error Ms refusal to admit exhibit #11 hospital her admission to the on March 10, 1963,her apparent physical consumption condition, and her phenobarbital, an amount of unknown but not as to diagnosis made at that time. The doctor who days' treated defendant on her testified at the re-admission later hospital referring trial, to the record (exhibit #12) made at that time. We find that prejudice by defendant suffered no the initial ex- diagnostician fully clusion of exhibit testified as the #12 as to her condition later in the trial. psychiatrist testify' Defendant called a on the insanity. alleges issue of her error in She that the permit psychiatrist testify did not trial court history given to the him when as examined defendant he give was
her; that he not allowed to his opinion as to defendant’s mental state at the time alleged offense unless counsel framed his questions; hypothetical inquiries in the form of and present psychiatrist was not allowed to that upon diagnosis which of defendant was based her history his examination of her. medical and may parties agree psychiatrist testify that a upon personal opinion partially as to his given history patient if to him he is the people allege “treating” psychiatrist. However, purpose psychiatrist for the was consulted that this preparation of defendant and oh behalf that of trial self-serving hearsay, history and, would be the thus, excluded. Defendant denies that it should be only psychiatrist consulted trial alleges preparation, defendant, that he did treаt people- contention of the it is found that the if but history essential find the this Court asks true, is psychiatrist. patient of a evaluation general when medical occur situations Four sought into evidence is to be introduced 12 the Court. an on the issue of formed doctor based patient. history a obtained from the “treating” physician psychiatrist: may 1. The or testify personal history given by patient. as to “nontreating” physician: may
2. The (Layton Gregan Michigan Mallory Company, & 574). persists Inc., 269 Mich The fear patient following the incident sent to a doctor *10 readily self-serving
will make statements. The modern trend in the United States to allow is nontreating doctor to consider the these statements opportunity in order that he have the to form intelligent opinion an on the basis as much infor placed mation аs is available. Reliance is on his ability malingering. to detect 6 Am Jur, See Trials, p § 17, physician treating” psy-
3. The “referral and and may testify personal history chiatrist: given as to the patient by treating to him a as doctor if purpose this is one of the visit. is This trend exemplified by the case of Ritter v. Coca Cola Com- pany (1964), (128 439). 2d 157 Wis NW2d “nontreating psychiatrist”: may testify 4. The as history exception to to the lems faced in those which states an make exclusionary unique prob- rule because of the
by psychiatrist making subjective in predicated understanding observations on a full patient’s p a Am life. 6 Trials, 19, Jur urges psychi- first
Defendant us to find that the (3) following atrist would fall under above because, August, psy- the birth another child 1964, the pre- chiatrist recommended that she be stеrilized to pregnancy, further vent based on his of her prior mental condition to that time. However, testify permitting history issue him to toas by given objected himto defendant was to and ruled long on before court was in- trial People Herrera. the Court. concerning possible “treatment” troduced psychiatrist. subjective psychiatrist’s a nature of to the
Dne agree diagnosis, him it essential for we description patient’s employ verbal of the the tool history, (4) as above. life and mental of her history objection “self-serving” can be to the over expertise, upon psychiatrist’s reliance come detecting ability experience, liars. The trial permit psychiatrist repeatedly refused to court diagnosis of defendant’s condition as to alleged by probability, July 13 because people case, on an 1888 New in reliance York the that they self-serving when were
the statements physician after the months incident made to a were by claiming insanity person at time of a (17 109 NY v. Hawkins incident. 371). NE unlikely always highly will defendant
It is committing psychiatrist before an act consult impulse it is not reasonable under irresistible subsequent psychiatric diagnosis to restrict bar- history ring of a lack required an essential because of fore- *11 sight person a to a be see would psychiatrist being impulse. seized an before such concept acceptable light The is not Hawkins psychiatrist psychiatric techniques. of modern did that when he first November, her examined he found to be schiz- defendant, ophrenic paranoid with features. The frustration attempting psychiatrist to at faced arrive permitted diagnosis being a without to consider the patient history apparent throughout of the is record of this trial. He been denied a has vital diagnosis psychiatric proper to tool essential a patient’s his mental to condition. We believe prepare deny a opportunity counsel the founda- Arp Opinion op the Court. psychiatrist diagnosis by by omitting a tion for a psychiatrist by statement made patient present in the However, is error. case, we particular prejudicial do not believe this error to be right to permitted to a fair defendant’s trial as the doctor was presence jury in the оf the to form an upon hypothetical opinion question com- posed already from facts elicited other witnesses: assuming only, you “Q. Now, those facts do have opinion you opinion have an as to her mental —do * ** July condition on 13, 1963? opinion. Yes, “A. I’d have an opinion, “Q. What is that doctor? mentally “A. That she was I ill. would not have specific opinion regarding diagnosis, the absolute adequate my opinion but that would be evidence in mentally severely that she would be ill and so. bring “Q. And would that condition about the acts ** * having performed? that she’s accused of say severity I “A. would like to that the alleged illness compatible would make the act a product of it.” prejudice We do not find that resulted to defend- ant considering present on the issue, state of Michigan law.
We have seen permit trial court did not psychiatrist give opinion his as to defendant’s sanity July as of 13, 1963, unless counsel used a hypothetical question, including only the facts which presented had been to the court and facts which particular were before the at that time. G-CR substantially 1963, 605, limits former rule that nontreating physician permitted only “hypothetical question”. questions answer a Such are expert asked in order to limit the of an testifying, giving
who is *12 to him facts related others. 1963, GCR Herrera. v. Opinion op the Court. expressly to make intended better nse tbe 605 is expert testimony to of an bind him to an single question composed aof of the facts already It introduced into evidence others. re- judge within the disсretion of the trial to use mains hypothetical question the the assist court or expert understanding opinions. in the perusal and examination of Careful the record show abuse discretion the trial does not judge requiring employ hypothet- counsel to question. Again, ical we find error in the trial permit psychiatrist court’s refusal to discuss history given patient, him but we do prejudicial psychiatrist not find it did answer hypothetical question as to defendant’s mental July by stating that in condition on opinion mentally was without ill, she consideration that he had with her. the interview police only people officers The called as their police witnesses on rebuttal. One officer arrested brought police defendant and her to the station joined questioning with the first and the other pur- The officerswere called for the defendant.. pose rebutting as to her defendant’s give their defendant. and to observations of permitted policemen trial court these objections repeated of defendant’s counsel over only they alleged with had a conversation at a time when she hour 10 minutes for one her wet, and disheveled, handcuffed, under arrest, was are con- husband dead. We that her was informed nonexpert opinion admissibility with cerned testimony. Michigan rule the State
The fundamental of Beaubien case the civil stated in first as follows: 459, 503, 12 Mich Cicotte *13 Í2 Mich Árr [Juné '82 the Court. of things, from the nature no rule can he “But, laid down what amount declaring acquaintance, are necessаry or what enable an opportunities a witness. There are of in- observer to be cases sanity to the while others slightest scrutiny open defy the search. But no can testimony keenest be of adequate conclusion.” real it value, appears unless the witness had for opportunities
means and some forming This restated in the criminal principle was case People v. 285 Mich Zabijak (1938), 164, 185, wherein the Court states:
“A nonexpert witness who has had ample means to observe and form conclusions as to the mental condition a person who testifies to pertinent facts on which his are conclusions state his conclusions as to the of a person.” Zabijak decision has been once interpreted by an equally dividеd Supreme Court in Michigan the case People v. Hannum 362 Mich (1961), The Court held testimony that lay which constituted opinion sanity evidence to the the defendant presented question a for the jury but reversal was not had on this ground. justices Pour concurred reversal, in the they but found that prejudicial error was also committed the trial court in admitting opinion of the 3 testimony nonexpert witnesses. In the Hannum Case, the trial court admitted the opinion policemen testimony of over defendant’s objection in because, its view, question of limited for opportunities observation of defendant witnesses went only to be weight given by the to the opinion testimony, and not to its admis- The trial sibility. court did the same in the present in permitting case the officers to testify, when par- ticular officer one could not answer counsel’s ques- tion, you person “Would normal who say had People v. Herrera. Opinion of the Coukt. dead wonld cool, her husband was be calm told been immediately Defendant’s counsel collected?” saying, objected, court overruled “The him, but the [the witness’] weight would be taken of his jury.” justices The 4 into consideration ground this in the Hannum Case did not reverse agreed with the statement the case Borgetto 336, 341, 99 Mich to wit: there is difference the nature of “But opinions The former is the requisite in the two as bases *14 insanity. sanity of and cases condition; latter, normal latter is based the the abnormal. The upon conduct; unnatural the former may upon safely rest the absence unnatural action language. or it is shown that witness has Once the acquaintance a sufficient under circumstances that opportunity judging, give a reasonable for and the testimony nothing that he saw unusual or abnormal competent. required is isWhat to show a sufficient upon opportunity depends which circumstances properly judicial move the discretion, the being more or less valuable the circumstances are convincing.” In order to determine whether the trial court permitting police its abused discretion in the officers testify, to we must determine whether there was ample sufficient for the basis court determine that opportunity existed for the to form witnesses an opinion. necessary enough
The time to obtain facts fоr a opinion vary according reasonable will the cir- proper prepared cumstances. A foundation police expe- when the officers testified as to their persons, rience with the insane initial contact with subsequent Bar, defendant at the Wonder conver- appearance, sations with her her com- defendant, and her emotional to the ments, her husband’s death. The trial court then deter- reaction news of App 12 ti-ie Court. ample opportunity that there was to form
mined opinion permitted testify, noting an the officer jury weigh that determine and the valid- could ity appeared that defendant sane. no the court in find- We find ing abuse of discretion opportunity ample for observation. requested
Defendant the trial court to instruct they guilty that if were to find her not insanity, reason would confined in the she be hospital request being State de- insane, Michigan required mandatory The nied. statute upon finding insanity, commitment of this at time trial, and was found at 766.15c CL (Stat 28.933[3]), subsequently Ann 1954 re- Rev pealed PA No 266. argues “Lyles
Defendant instruction” given, being should have been this instruction de Lyles rived from case of v. United States (254 725), DC F2d wherein instruc approved required, tion was unless defend ant does not want it, courts the District of Columbia to the effect if defendant guilty insanity, found not reason he will be hospital. reasoning committed a mental *15 given jury, although that a is of aware what the guilty guilty results a not or decision be, will happen does not know will what a to defendant if guilty insanity. the verdict is not rеason We agree Supreme with the of the Court of the State Vermont the ease of State v. Hood (1963), (187 123 732), Vt 273 A2d 11 499, ALR3d jurors that are not this ill-informed and that Lyles certainly binding decision is not on this Court. require given, We do not that such an instruction be and we do not find that the trial court has erred refusing request. People this See v. Cole 8 Mich v. Herrera. the Court. requested trial court also to make
Defendant charge only upon degree a second murder as charge was the same as was set forth in the request being and the information, warrant said manslaughter and the lesser offense of refused, also being charge along included in the with second de- argues gree Defendant if an murder. accused open charge with the is faced of common mur- law may trial court include all offenses der, there- specific charge first- under, but where or sec- ond-degree made, murder is the court need not jury on the lesser and, offenses when instruct the defendant charge
objects such lesser instruc- respect request. court tions, the should (Stat 768.32 Ann refer CL We 28.1055): §Rev
“Upon consisting offense, for an indictment degrees, prescribed chapter, in this of different may guilty find the accused charged degree in the in the indictment offense any degree person guilty may find such accused charged in in- inferior to that offense, of such attempt to such of an commit offense.” dictment, or in the court’s refusal to not find error trial doWe manslaughter. charge is As stated in as to omit a Gillespie, Michigan Law Procedure Criminal (2d ed), p § 674, 865: which the de- is under there
“Where of a of an offense lesser be convicted fendant principal is offense, it not error degree than the jurors charge that court to refuse principal their deliberations confine must respondent charge a lesser convict and cannot upon evidence there some but, where offense, respondent may of a lesser be convicted which limit the for the court to verdict offense, it is error greater offense.” to the *16 12
86 Mich the Court. accepted Were the trial court to have defendant’s request charge manslaughter, and omitted the as to disagree we him well have been forced to with People and find that he had erred. See v. Hamilton (1889), 76 212; Milhem charge Mich 497. The court must in relation to degrees lesser of an offense where there is evidence support which would tend to conviction of a lesser degree. manslaughter We find evidence of and do requiring not hold that trial court erred in manslaughter. to consider propriety Lupe affirm We of the conviction of Although Ruth Herrera. several errors have been noted, we do not find of them to be of sufficient prejudice right to Mrs. Herrera’s ato fair trial to require carefully protected by rights a reversal. Her ato fair trial were judge, the trial her defense temporary insanity presented jury’s for the consideration dence several witnesses, and the evi- supported jury. verdict The trial required rulings, court was to make numerоus existing Michigan so, did law, we do prejudice not find that defendant suffered where error existed. This trial was fair. It need not be perfect.
Affirmed. J., concurred with J.
McGregor, Fitzgerald, (dissenting). P. J., T. G. In addition Kavanagh, my the 3 areas error indicated brothers’ opinion, I find more.
1. Denial of defendant’s motion for the disclosure the rebuttal witness. Lyles Limiting requested instruction. [Lyles (1957), App (254 v. United States 22DC 725).] F2d *17 87 People v. Herrera. by Dissenting Opinion Kavahagh, T. G. P. J.
I cannot subscribe to the evaluation of 3 opinion majority errors in the listed “harmless” I more than could so characterize the 2 indi- prejudicial.” cated or the sum them as “non above of I do think I not the defendant had fair trial. will not comment further on the errors described my opinion beyond saying agree brothers’ I they were errors.
The court’s dеnial defense motion for the by disclosure witness be called the state question sanity prevented my on the view properly preparing defense from and cross-examination accordingly prejudicial error. permitting
I do share not the conviction that psychiatrist defense as to his sanity limiting defendant’s cured the error subject hypothetical ques- on examination to a purpose tion. The whole of G-CB1963, 605 is sub- by my opinion. verted this device, glaring perceive But the most I error which Lyles give the court’s refusal to instruction.
In Cole 250 the (as here) trial court refused to instruct on the effect (Stat 1948, CL 766.15c Ann 1954 Bev 28.933 [3]),* refused allow defense counsel to state argument, law in his and refused to answer a direct inquiry point jury during on this its deliber majority panel ations. A case of our Court’s in that approved. disagreed disagree I there. I here. pleads guilty by I believe defendant who requested reason is entitled to have the given jury on instruction the statute to the so that will not be moved its fear ignorance of the law, which fear seemed so obvious current Cum [*] PA Repealed Supp provisions §§ No 266 28.966[11], PA see PA 1966, (MOLA 28.966[12]). No 266, §§ No 767.27a, 175, effective ch 767.27b, 7, March §§ 27a, Stat 10, 27b, 1967. Por Ann 1968 as added i [june Mxou Aiu» 67. Dissenting Opinion by T. G-. P. J. Kavanagh,
to me in Cole. In we Cole could see the flower. Here we can see root. I task, Our as perceive it, tois extirpate noxious weed of ignorance how- it ever appear,
I would reverse remand for a new trial.
BONKOWSKI DEPARTMENT ARLAN’S STORE. Imprisonment 1. False —Torts—False Arrest. The tort of false speeies arrest or unlawful arrest of the imprisоnment. action for common-law false Agency Responsibility — — 2. Same —Private Policeman — False Arrest. department corporation Defendant held, responsible to be store damages private policeman, tortious act of private protection under police furnished contract with serv- ice, making shoplifter, suspected false of a arrest where apprehension shoplifters record shows that scope within private policeman’s authority, [1] [2] [3, [4] [5| [6] [8, [16] [15] [14] [13] [10] [11,12] [17] "18,19] 20] 7] 9] 32 Am Principal’s liability 32 Am 32 Am 32 Am 33 Am 5 Am Jur 33 Am 33 Am 33 Am 33 Am 33 Am 5 Am Jur agent 53 Am 32 Am Am Jur 32 Am 33 Am Jur Jur Jur, Jur Jur, Jur, Jur, Jur, Jur, Jur, or Jur, Jur References 2d, servant, 2d, 2d, 2d, 2d, Appeal 2d, Appeal Jur Jur, Larceny Libel and Slander Libel and Slander Libel and Libel and Slander Libel and Slander Slander Libel and 2d, Trial False False False False 2d, Libel and Slander False False 92 ALR2d 15. §§ § Imprisonment Imprisonment Imprisonment Imprisonment for false arrest or 45. and Error and Error 539, Imprisonment Slander for Points Imprisonment 545. §§ §§ § §§ §§ § 261. 14. 2, 8, 49, 90, 96, 90, §§ §§ §§ § § in Headnotes 108. 85. §§ 90, 96, 44, 45, 1, 104. §§ 47, 2. imprisonment 261. 105. 90. 47, 74, 74. 106. 47. 105. caused