117 Mich. 578 | Mich. | 1898
The defendant was convicted of the offense of breaking and entering a store, not adjoining to nor occupied with a dwelling, with intent to commit larceny. Upon the trial there was testimony tending to show that among the articles 'taken from the store on the occasion of the breaking were some butcher knives, and that similar
To prove the charge, the prosecutor called Baxter, the manager, who testified to the circumstances showing the breaking and entering, and the interference with the property contained in the store. He*did not identify the knives alleged to have been found at the defendant’s premises with positiveness. Upon the claim that he was an adverse witness, the prosecutor was allowed to ask direct questions, and showed that he received $400 or $500 as pay for the stolen goods, and that he withdrew the complaint; that he afterwards took the money back. He was also examined in relation to his statements in regard to the identity of the knives when they were discovered. It was within the discretion of the trial j udge to allow the prosecutor to show by the witness Baxter, through leading questions, his conduct in receiving money and withdrawing the first complaint. He was not permitted to state the name of the person who paid it to him, and his supposition that it came from the defendant was stricken out.
Among the witnesses called by the prosecutor was one Dickinson, a blacksmith, who was working for the defendant at the time of the burglary. He testified that the defendant came home about 12 o’clock that night, but that he had been asleep, and did not positively know the time, and, after being confronted with and allowed to read his deposition upon the examination, admitted that in the justice’s court he testified that it might have been 4 o’clock and it might have been 12. It appeared, also, that he was subpoenaed at Holland, and furnished with a ticket, upon a telegram from the sheriff, to enable him to attend the trial; that he met the defendant at Durand, and was accompanied by him to Flint, and that they went from the train to the office of the defendant’s counsel, and from there to the defendant’s house, where he remained that night; that he did not see the sheriff at the depot, but got off from the train with the defendant at the bridge. He was examined quite closely by the prosecutor. The only suggestion of error made in the brief upon Dickinson’s examination is that the court permitted the prosecutor to cross-examine him, and the witness to answer numerous leading and impudent questions. Leading questions are usually within the discretion of the circuit judge, and mere impudence to a witness is not a ground for reversal.
Counsel assign error upon the remarks of the prosecu
Statement No. 18 was not a proper one for the prosecutor to make. His recollection of what Garner testified in the justice’s court was not proper evidence, but it was an immaterial point, inasmuch as no attempt appears to have been made to contradict Garner’s statement that his attention had not been called to the number of knives at the examination. The subject was not very material, in any view of the case, and could hardly have affected the verdict. The court was careful to instruct the jury to disregard statements not justified by the evidence.
Error is assigned upon the refusal of the judge to give several of the defendant’s requests to charge, but we think the general charge sufficiently covered the subjects.
The quotation of the testimony of a witness in relation to the situation of'the premises, if erroneous (which we do not assert), was not injurious, as, under the testimony contained in the record, there was no dispute as to the store not being adjoining to or occupied with a dwelling house.
We are of the opinion that it was competent for the court to permit the information to be amended, upon the motion to set aside the verdict, by permitting the clerk to sign the jurat, which the proof showed his failure to do earlier was a clerical omission.
Error is assigned upon the refusal of the trial court to submit the following special question to the jury, viz.:
We have examined the numerous assignments of error, and think it unnecessary to discuss others.
•The judgment is affirmed.