155 Mich. 107 | Mich. | 1908
Respondent was convicted of having
During the progress of the trial, the prosecuting attorney asked and was granted leave to indorse upon the information the name of a witness. In permitting the name to be indorsed, the court said:
“In this case, it appears from the evidence of the prosecuting attorney that he knew nothing about this man’s evidence or about the name until today noon. For that reason I think I shall permit the indorsement, but I will say to the defendant’s attorney this: That it now being 15 minutes to 2, standard time, that this case will not be concluded today unless you so desire, but you may have until tomorrow morning to make such investigations as you desire in regard to this witness.”
During the same afternoon, the witness was called and examined, over the objection:
“We desire to object to any testimony from this witness, for the reason there is no proper notice or sufficient notice given to the respondent or his attorneys to investigate this witness’ testimony in this case.”
The objection was overruled and an exception taken. The record shows that, although the sheriff had subpoenaed the witness and had him in attendance at court on the previous day, the prosecuting attorney knew nothing of his presence and had no knowledge that he
The sheriff of the county was a witness for the people, and testified that, after having arrested respondent and read the warrant to him, respondent said, “Ihave paid the tax,” that he went with respondent at his request to the place of business — a pool room — where it is claimed the liquor was sold, and respondent took down and showed to him a paper, saying:
“There is my receipt for the government tax that I paid. I have got it posted in a conspicuous place — what I call a conspicuous place.”
This testimony having been given, the following occurred :
“Q. What was the date of this license ?
“Jir. Shields: We object to that as not the best evidence.
“The Court: I think we better show what he did with it, whether he has got it.
“Q. Have you got the license in your possession ?
“A. I have not.
“Q. In whose possession was that license when you last saw it ?
“A. Mr. Moore’s. possession.
. “Q. Have you seen it since ?
“A. I have not.
*112 “Q. Do you know where it is now ?
“A. No, sir.
“Mr. Green: Then I make a demand on counsel for respondent to produce that license in court.
“Mr. Howlett: It is the first time in my life that I ever heard a prosecuting attorney request the respondent to produce evidence to convict himself.
“Mr. Shields: I take an exception to it.
“The Court: He simply asked you to do it. You can do as you please about it. The respondent or the attorneys for the respondent do not have to produce any evidence.
“Mr. Shields: We do not understand that the prosecutor has a right even to make such a demand, in the presence of the jury.
“The Court: I think, where there is an objection made, he can ask you to produce it, and then it’s your choice to do as you think best about it. I don’t think any one would have a right to compel you to do it.
“Mr. Shields: I take an exception to the statement.”
The witness then testified, over objection, that the paper shown him was a receipt given by the revenue collector, that it was dated in July, 1907, and ran to July, 1908, that he did not read the paper, that respondent told him it was a receipt for the current year, and that he had paid a government tax pretty nearly every year “since I run this place, which is seven or eight years.” The conduct of the prosecuting attorney in asking respondent to produce the receipt, and the language employed by the court in his rulings, and the following language used in delivering the charge to the jury, are made the grounds for several of the assignments of error. The jury were told:
“If you find what the sheriff said is true, you have a right to take that into consideration in determining what his business was at that time. Did he have a government receipt for selling spirituous and intoxicating liquors? Was he in that business at that time, on the ] 8th day of December, 1907 ? * * * The government license, the United States government license, gives no one a right to sell liquor in this State. It is simply a revenue collected by the United States government upon those matters.*113 Outside of that, they have to give a State license as I have explained to you.”
The contentions made are:
(1) That in asking the respondent to produce the government license or receipt, the prosecuting attorney was in effect demanding that respondent take the witness stand, and was asking him to give testimony against himself.
(2) That the rulings which were made and the charge to the jury assumed, and the jury must have so understood them, that respondent had a government license to sell liquor and was therefore engaged in the business of selling liquor.
It was clearly competent to prove what respondent said to the sheriff about having paid a tax and to prove the fact that he exhibited a Federal license for the current year. That the statements were made, and the license exhibited, in immediate connection with the reading to the respondent of a warrant charging him with being engaged in the business of selling spirituous and intoxicating liquor without having paid the tax, is significant. It is true the Federal authorities collect a tax upon the business of selling tobacco, and it appears that respondent kept tobacco for sale. It is not to be supposed that respondent was exhibiting to the sheriff a license to sell tobaccos in proof of his assertion that he had paid a tax upon the business of selling liquor, which was what he was charged with carrying on. The only reasonable inference to be drawn is that respondent’s assertions and his exhibition of the receipt, or license, followed immediately upon, and were brought about by, his arrest upon the charge which was read to him. If the testimony was believed, it was conclusive evidence of the fact that respondent conducted the business carried on in the place. Without explanation, it was convincing evidence of the fact that he wished for no Federal interference with sales of liquor made in his place of business. The reference to the subject in the charge of the court was not error. Nor do we think the conviction should be reversed because the prosecuting attorney asked counsel for re
The prosecution introduced evidence tending to prove that goods were shipped to respondent over a line of railway, consigned to him, and delivered at the place of business which it is claimed the respondent carried on. When the cases were emptied, they were returned from this place of business to the railroad depot. It is said the admission of this testimony was prejudicial, because the jury were permitted to infer that, although the packages were billed as mineral water, they in fact contained intoxicating liquors. The record discloses, and this has already been
No other of the alleged errors requires particular notice.
We have found no reversible error, and the conviction is therefore affirmed.