People v. McElheny

206 Mich. 51 | Mich. | 1919

Brooke, J.

(after stating the facts). The first assignment of error discussed in counsel’s brief is based upon the refusal of the court to direct a verdict in favor of the respondent upon the ground that the testimony set forth in the information was not material to the issue being tried in the civil case. This contention is based upon the assertion that after the amended bill of particulars was filed the only issue between the parties was whether there had been a settlement between the plaintiff and defendant whereby the defendant had promised to pay to plaintiff the sum of $6,000 in settlement of all their differences. With this contention-we cannot agree. Plaintiff in that suit asserted that a contract had been entered into for an equal division of the profits on the Coin and Blanchard drain and further by his amended bill of particulars asserted that $6,000 was the amount later agreed upon to be due the plaintiff under that contract. Respondent by his plea denied both assertions. We think, therefore, that the testimony given by respondent in the civil case in which he denied positively the making of an agreement to divide profits on the Coin and Blanchard drain was material to the issue and that the jury should have been so instructed by the court.

It is. next urged by counsel that assuming the materiality of the evidence its falsity was not proven in the case at bar by “two or more witnesses or by one witness supported by corroborating and independent circumstances.” We are of opinion that the evidence of Charles H. Showers supported by that of his wife, Minnie Showers, taken together with the contents of the letters written by the respondent, was sufficient to carry the case to the jury.

Error is assigned upon the language of the court quoted in the statement of fact addressed by the court to respondent during his cross-examination. Respondent was on trial for perjury. He had given testimony which tended to show that the prosecuting attorney prior to the issuance of the warrant in the case at bar had threatened to make an improper use of criminal process for the purpose of collecting the judgment arising out of the civil case. We are not concerned with the explanation given by the prosecuting attorney of the incident in question. The point is, Were the strictures of the learned trial judge delivered to respondent on trial for an offense involving his liberty for a long term of years such as. were calculated to prejudice him in the minds of the jurors who heard the remarks and later brought in a verdict of guilty? We are constrained to hold that the language indulged in by the court was such as naturally would and probably did influence the jury against the respondent to his injury. We have examined the assignments of Jerror touching the alleged improper conduct of counsel for the people and with reference to the admission and rejection of testimony and find therein no reversible ¡error.

.¿There are many assignments upon the charge of the court as given and particularly upon that portion of the charge given after the jury returned to the court room for the second time. These it is unnecessary to consider at large. It is sufficient to say that we think the language of the court in the latter portion of his charge is open to the criticism that it was likely to confuse and mislead the jury and that it failed to give to the jury the exact information required which was whether the letters introduced in evidence were dated before or after the date of the claimed settlement in December, 1910. After a consideration of the whole record we are of opinion that the respondent did not have that fair and impartial trial to which he was entitled under the law.

Judgment is reversed and a new trial ordered.

Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.