49 Mich. 78 | Mich. | 1882
The respondent was prosecuted for the-larceny of a watch, and on trial was convicted. The case comes here on writ of error after judgment.
Counsel should have been permitted to examine the book which Mrs. Lewis used when on the stand for the purpose of fixing dates and to refresh her recollection from entries therein made by her. The statement of the witness that entries made on other pages had no reference to the matter in issue, might be true and still they would tend to show the entries relied upon to be false.' Every reasonable opportunity, within well-settled legal rules, should be given counsel to expose falsehood or ascertain the truth.
The questions asked Mrs. Brew as to the directions given her by Sarah Smith, concerning the receiving of mail matter and express packages for the latter, should have been received. In so far as the prosecution sought to show, by the cross-examination of this witness, that the respondent had stolen other property, or that the property pawned by the witness for the respondent was stolen property, error was committed. While it is competent on cross-examination of a witness to show that her testimony is likely to bo affected and influenced because of the intimate relations existing between her and the accused, yet the examination must not be permitted to go beyond this, and under the guise of affecting the credibility of the witness, attempt to prove that the party on trial has committed other similar offenses. Whether the witness had on other occasions pawned other property for the respondent was proper, but it was not proper to inquire whether such property had been stolen.
N o legitimate argument could have been made in the case against the respondent because of Mrs. Brew’s failure to show that such a person as Mrs. Sarah Smith existed. If the actual existence of such a person was material to the defense, and was not proven, that fact was the proper snb
In charging the jury as to the weight of the testimony of certain witnesses, and illustrating the same by a story of an impossible occurrence, the court said: “There is some testimony that you are no more bound to believe than I was to believe that. In this case I feel it my duty to say to you that you are sole judges of what the evidence is in this case. It does not belong to me to say to you that you must or must not believe it. I repeat, you are the sole judges of the weight of the testimony of every witness, who has been sworn in this case, but I claim the right to say to you, and therefore I do it, that were I in your situation I should give no weight to the testimony of Hubert McKinney, in this case, and very little to that of Mrs. Brew.”
Now while it may be highly probable that the testimony of these witnesses was in fact entitled to no consideration by the jury, yet the weight to be given to it was for the jury and not for the court. And while true it is that the ■court carefully and pointedly charged the jury that they were the sole judges of what the evidence was and the weight to be given it, yet this did not in my opinion justify what followed. It is well known in practice that the opinion of the trial judge has very great weight with the jury, and very properly so, and for this reason, so much more careful should the court be, to not assume a part of their province. Standing alone, what the learned judge said he would do if in the situation of the jury, would be clearly unwarranted and could not be sustained, and what preceded it does not take away or destroy its prejudicial effect. If it did, as well might the jury be dispensed with, as it would be but seldom indeed jurors could be obtained with sufficient strength of character to impartially .weigh the testimony under such instructions. I think the charge in this case goes farther than what the opinion of this Court in Sheahan v. Barry 27 Mich. 226 would justify, and for my own
The judgment should be reversed and a new trial ordered.
