107 Mich. 556 | Mich. | 1895
1. The respondent was convicted of a violation of the local option law, in force in Eaton county,
Formerly in England, even in cases of felony, when the demurrer to an indictment was overruled, the prisoner was not allowed to plead over, upon the theory that his demurrer admitted his guilt. Such, however, has not been the rule in this country, except, perhaps, in some cases of misdemeanor. Such a rule finds no commendation in reason. The purpose of a demurrer is to obtain the judgment of the court upon the law, and to determine whether the pleading on its face establishes a case. Of course, if the party stands by his demurrer, judgment must go against him. But the usual and proper practice is, where the demurrer is overruled, to permit the proper pleading to be filed to join issue. The respondent’s counsel cite Douglass v. Satterlee, 11 Johns. 16. The practice permitted in that case is against the learned counsels’ contention. Upon overruling the de
2. The board of supervisors authorized the employment of an assistant prosecuting attorney to assist the prosecutor in preparing and investigating cases before the grand jury. Acting under this resolution, the prosecutor applied to the court, asking the appointment of Mr. McPeek, and an order was entered making the appointment. The statutes (sections 551, 560, 1 How. Stat.) prescribing the duties of the prosecuting attorney, and authorizing the employment of additional counsel in cases of felony, do not prohibit the employment of additional counsel when, in the judgment of the board of supervisors, the prosecuting attorney, and the court, such additional counsel is necessary.
3. Objection was made to the employment of Mr. McPeek to assist in trying this cause, because of his strong prejudices against the liquor traffic. Before the court made the order, Mr. McPeek was examined under oath, and testified that he had a very strong prejudice against the sale of intoxicants as a beverage. This did not disqualify him. The public authorities were not required to employ an attorney who believed in the liquor traffic, or was indifferent to the illegal sales of liquor. The traffic in Eaton county was made illegal by the vote of the peox>le. The stronger one’s convictions are against an illegal traffic, the more efficient prosecutor he
4. Objection was made to the competency of several jurors on the ground that they had formed opinions. Their opinions were based upon hearsay, were not fixed or positive, and the jurors swore that, notwithstanding such previously-formed impression or opinion, they could render a fair and impartial verdict. They were competent jurors.
5. One juror was incompetent. He had been a clergyman and was then a farmer. When asked what his verdict would be, if he found the testimony about equally balanced between the people and the respondent, he replied, “I should think it should be guilty.”
C. A witness who had drawn some cases of goods to the respondent’s place, billed as “hop pop,” testified that he delivered the bills to the respondent, and was asked, “Where was the hop pop billed from?” The testimony was incompetent, and the question should have been excluded. The bills were the best evidence, and no notice was given to produce them. We decide this point in view of a new trial. The answer was unimportant, did no harm, and the case would not be reversed for this error.
7. Some witnesses for the prosecution were asked by the prosecutor about their testimony before the grand jury. It is apparent upon the record that these were unwilling witnesses for the prosecution, who were evidently prejudiced against it. It is competent, in such cases, for the prosecution to call the attention of witnesses to their depositions given on other occasions, for the purpose of refreshing their memories, and, if possible, eliciting the truth. This cannot be done for the purpose of impeachment. A party, however, is entitled to some latitude in the examination of hostile witnesses.
It is, however, insisted that the witness could not disclose the evidence he gave before the grand jury. The deci
“Members of the grand jury may be required by any court to testify whether the testimony of a witness examined before such jury is consistent with, or different from, the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person, upon complaint against such person for perjury, or upon his trial for such offense,” etc.
• The present case is completely covered by this statute. Members of the grand jury can testify, in a proper case, to statements of witnesses made before them. The respondent could have introduced their testimony to contradict the testimony of the people’s witnesses. State v. Fasset, 16 Conn. 467; State v. Broughton, 7 Ired. 96; Way v. Butterworth, 106 Mass. 75; 3 Rice, Ev. § 255.
8. Complaint is made that some of the remarks of the assistant prosecuting attorney in his closing argument to the jury were intemperate, and an unjustifiable appeal to prejudice. It is unnecessary to state them in this opinion. In view of a new trial, we deem it proper to say
The judgment must be reversed, and a new trial ordered.