96 Mich. 630 | Mich. | 1893
This case was in this Court at the April term, 1892, and is reported in 92 Mich. 17. Respondent had been convicted of murder in the second degree, and the case was reversed, and sent down for another trial. The second trial has been had, resulting in a conviction of manslaughter. The case comes up again upon a writ of error, aided by an ancillary writ of certiorari, which brings up the proceedings on the argument of the case before the jury and the rulings of the court thereon, which were not included in the bill of exceptions, but to which the court below now makes return. ■
It appears from the affidavit for the writ of certiorari' and the return thereto that an agreement was made between! the prosecuting attorney and counsel for respondent that the case should be submitted to the jury without argument. Counsel claims a violation of this agreement by the prosecuting attorney, to the prejudice of the respondent. After the testimony had closed, the prosecuting attorney voluntarily suggested to counsel for respondent that the case be submitted to the jury under the charge of the court, without argument. Counsel agreed to this, and the case was adjourned until the next day, when respondent's counsel presented certain requests for the court to charge, and read them to the court. The prosecuting attorney, in response to these requests, with a pretense of answering them, and against the protest of counsel for respondent, then addressed
“There had been a fight over at his saloon, and that he had been cut with a knife by the defendant, Mr. O'Brien."
The prosecuting attorney, in his further address, dwelt upon this part of the case. In speaking of the testimony of Dr. Siebert, as to the conversation with deceased, he .stated that the deceased said:
“I got them from the hands of Chris. O'Brien. I got •.these mortal wounds from a knife in his hands.”
Among -other things, the prosecuting attorney said to áhe jury:
“Now, gentlemen of the jury, of course the defendant will claim self-defense, and I want you to aid us in the trial of this cause. Pay strict attention to all the testimony, both pro and con. Put yourselves in the manner ■of jurors and detectives."
Bespondent’s counsel called the attention of the court to
It is evident that the court permitted the prosecuting attorney to go over the merits of such parts of the case, and argue them fully to the jury. This argument, undoubtedly, had its effect upon the jury. It was a plea for the conviction of the respondent, and a statement that there could be no question of doubt as to the facts or the law. It was an undue advantage over the respondent, which the court should not have permitted. It was prejudicial to the rights of the respondent for the prosecuting officer of the county to call upon the jurors to act as detectives, and for the court, when its attention was called to that kind of argument, to say to counsel, “ Take an exception.” The duty of the jury was to listen to the testimony, the arguments of counsel, and the charge of the court, and, when they retired for deliberation, to give the respondent the benefit of every reasonable doubt.
Perhaps the line of argument indulged in by the prosecuting attorney would not have been as potent' for conviction had it not been for his conduct throughout the trial, when his manner of conducting the examination of witnesses was open to grave criticism. His questions were leading, and, when objected to, were repeated, and the court itself, it seems, was unable many times to prevent it. The witnesses for the defense were criticised in the presence of the jury. John Luth was asked if he knew the penalty of perjury. The court instructed the prosecuting attorney that he must not say to the witnesses for the defense that they were committing perjury; if they were, he would have a right to contradict them by other testimony. The prosecuting attor
We do not think the respondent has had that fair and impartial trial which is guaranteed by the Constitution.
The conviction must be set aside, and a new trial granted.