221 Mich. 674 | Mich. | 1923
Defendant’s wife left him against his. will and accepted employment as a waitress in a. restaurant in Detroit. She was a friend and companion of the head waitress, Lena Belle Collins. Defendant was jealous. Being troubled by reports of •misconduct of his wife and of her 'associating with Mrs. Collins, he sought an interview at the restaurant.. When refused he left, returned shortly with a pistol* entered the restaurant, shot but did not kill Mrs, Collins, shot and killed his wife, and attempted suicidé.
In a trial for murder of his wife he was acquitted, the defense being insanity. For shooting Mrs. Collins, he was charged with and convicted of assault with intent to kill and murder. There was a like defense. Judgment was entered. Defendant brings error. Na serious question is presented.
Judge Heston sat in the trial of defendant on the charge of murder. At the opening of the instant trial defendant’s counsel objected to Judge Heston’s sitting “on account of the remarks alleged to have been made by Your Honor to the jury after the last acquittal and printed in the several newspapers of the city.” The objection was overruled. For having sat in the former trial, the judge was not disqualified. See People v. Ferrise, 219 Mich. 471. It is said that a heading of the record will indicate prejudice on the part of the judge. We do "not so find. The record
It is urged that in this trial the court erred in receiving testimony that defendant after shooting Mrs. Collins also shot his wife. It was properly received as a part of the res gestas and to characterize the act charged. And defendant contends that proper instruction was not given relative to the consideration of such testimony. But the jury was instructed:
“Now, gentlemen of the jury, we are trying this defendant for assault with intent to kill and murder Lena Belle Collins on June 5th, and that is the only charge preferred against him here. You are to determine that one question, and that question alone.”
The contention is therefore without merit.
In opening, the prosecuting attorney said it would-be shown that defendant after shooting the others attempted to take “his own worthless life.” Objection being made, the court stated that the word “worthless” was improper and ordered it stricken. Of the remark the prosecuting attorney later said: “I submit that was corrected at the time and stricken from the record, and I duly apologized for it, and I am sorry that I made it.” The incident does not constitute reversible error.
We have considered the other questions raised. No reversible error appears.
The judgment is affirmed.
