*1 632 382 Mich 628.
Dissеnting Opinion by T. E. Brennan, C. J. Under these circumstances the most unen- lightened policy permit social would the claimant to offer get evidence to the effect that he had to drunk go in order to to work. patently unworthy The claim is of belief; and even probable obviously if policy contrary public would be so accepted. that it should not be appellant. would reverse, costs to PEOPLE v. ROGER JOHNSON. Opinion oe the Court. — —
1. Criminal Law —-Trial Cross-Examination Discretion Appeal — Trial Court and Error. prosecution Control of eross-examination in a for a crime is left court, derogatory to the sound discretion of the trial and where questions witness, are asked of a it is for the court to trial rulings control such conduct and its will not be reversed on appeal exeept showing on a of discretion. abus.e —(cid:127) — — 2. Constitutional Law Criminal Law Self-Incrimination Waiver. any right question Defendant’s constitutional to refuse to answer prosecution material for is waived crime when he takes the witness stand. References for in Headnotes Points [2] [3, [5] [6, [7] [1] Cross-examination 4] 53 Am 58 Am Am58 30 Am Jur 9] Am5 particular Am53 Jur, Jur, Jur, Jur 2d, Witnesses Jur, Witnesses Trial 2d, aets or Evidence Appeal Trial § character Dissenting Opinion. 554. crimes, § § § § 621. and Error 95. 506. 1176. 47 ALR2d 1258. witness for accused with reference § 809.
[10] [13-14,16,17] [15] [18] 30 53 Am Jur Am Am Jur, Jur, Witnesses 29 Am 2d, Trial § Evidence Jur 69. 2d, § § 1175. Evidence § 339 et seq. Roger Appeal 3. Criminal Law — and Error —Cross-Examination—Testi- mony-Credibility of Witness —Proof. Cross-examination of defendant toas incidents occurring stabbing deceased, before the for whieh defendant *2 tried, being purpose bringing the with of from defendant his his own evaluation of character and to claim refute held, being prosecution of in a calm man result- without error ing second-degree murder, in conviction of was where there attempt wrongful impression no to in the minds of create jury judge charged jury the and the at'the time of the had the such went cross-examination that all credibility sub- question and was not to be considered as of charged 1948, 750.317). proof (CL stantive of crime § Appeal 4. Con- and Same — Error —Cross-Examination—Previous Objection. viction — previous by prosecutor as to of Cross-examination defendant held, in degree not error in for murder the second conviction in of second- prosecution conviction whieh also resulted instant opened up questioning of degree murder, line was where this judge and the trial by examination defense counsel on direct by objection questioning counsel quickly upon cut off such (CL 750.317). § Appeal of Deceased —Of- 5. and Error —Evidence—Record Same — Testimony—Nature fer of Proof — Deceased. was self-defense, deceased the criminal record of On the issue in in defendant properly excluded from evidence trial deceased, the Stale charged killing inmate with a fellow was proof nor at- no offer of prison, counsel made where defense in evidence tempted the criminal record of deceased to introduce criminal the facts deceased’s full disclosure of and where for defendant and witnesses the defense was made to record quarrelsome nature of deceased testify as were allowed to (CL 1948, 750.317). § Jury—Instruc- Closing Appeal and Statement — Error — 6. Same — tion —Verdict—Evidence. de- closing argument, that by in his prosecutor
Statement from his en- retreated have could of murder fendant accused prison, and deceased, in the State inmate a fellow counter error, so, where doing was not for not given no reason had find verdict judge to trial jury was instructed 382 coming from the evidence from the stand no witness and other place, jurors it was for the determine whether not part by counsel were or in claims whole substantiated produced open arguments court, and evidence of counsel (CL 1948, 750.317). were evidence not § Jury 7.. —Instructions—Evidence.
juryA should not have been misled an instruction from the judge trial that verdict was from found the evidence presented by witnesses and that given and law as evidence court, prosecutor not the statements of the and defense counsel, are to in arriving control the at a verdict. Self-Defense—Appeal 8. Criminal Law- —Burden of Proof — Evidence—Instructions—Objections. Error — Argument by closing in his statement that de- fendant accused of murder aof fellow inmate in the State prison prove fault, would have to he was without not aggressor, danger losing imminent his life grievous or suffering bodily injury, in order to sustain his self-defense, prejudicial claim of was not where *3 jury prоperly charged arguments that of counsel were law, not evidence or that prosecution the burden was on the guilty charged to show of defendant the offense and show' jurors facts sufficient and circumstances to convince the that killing objection self-defense, was not in and no was raised by (OL jury defense counsel 750- instructions § .317). Prosecutor—Closing Argument Appeal 9. Same — and — Error— Hearsay —Evidence. by closing prosecutor argument prosecution in in Statement his stabbing prison, resulting for of fellow inmate State murder, second-degree evidence, of conviction that ivas no there defendant, other except of no one defend- that than error, knife, though a prejudicial ant had was not even a an him witness testified that unidentified inmate nurse told possession brought deceased had a his when knife by defendant, hospital being hearsay after for stabbed suсh by statements are not evidence was cautioned arguments (CL 1948, court that of are not evidence counsel 750.317). .§ Eoger
Dissenting Opinion. Kavanagh, M.
T. J. op — Dependant — — Good Evidence Character Law 10. Criminal — — — Acts Dis- Particular Criminal Crimes Prior Character position. attacking a prohibited the character prosecutor is A of from puts in issue defendant, unless criminal defendant first showing good character, de- by offering his evidence from of acts, showing particular by show- bad character from fendant’s tendency disposition ing commit had a defendant introducing charged, evidence with which he crime from defendant, are connected unless other crimes of of particular in issue. crime with the circumstances Dependant op —Issues 11. Same —Cross-Examination—Character Character. —Good Response by he criminal on cross-examination that defendant person as сharacterized as calm cannot be construed himself having put character in issue and no rebuttal therefore of good was in order. character Testimony — — — Selp-Character- Same Cross-Examination — Misconduct. ization Prior cleverly pros- elicited A statement self-characterization ecutor on cross-examination the criminal cannot every prior springboard be used to reach guise testing by defendant, incident under the misconduct credibility. op op 13. Same —Character Homicide Character De- Victim —Good pendant. that character deceased victim introduced fact prosecution adversely neither worked nor in- murder for good troduced issue as to character. defendant’s Beputation op Dependant Credibility — — — — 14. Same Evidence Character. *4 be-
Reputation a criminal who his own defendant testifies of lightly by is an asset too valuable to be ensnared half showing attempt in to discredit the prosecutor an defendant falsely himself, where had characterized defendant defendant good his character. no evidence offered of Mich 632. Opening on Statement. Statement —Reliance 15. Evidence — l the stature and Opening are no accorded counsel statements of single upon prosecutor’s a weight reliance and a evidence of (GCM 1963, 507.1). opening unwarranted remarle is casual Testimony—-Credibility-—Evidence—Charac- Law — Criminal 16. ter. may Credibility testimony be tested criminal a of defendant of directly has introduced after defendant good proofs character. as to or Testimony Credibility — — — — Miscar- 17. Same Character riage op Justice. may inquired into to witness and character a Previous of life determining may what credence aid the еlicit facts testimony, it but where will attach to his manifest design questions but to is not to elicit facts effect of credibility witness, suspicion upon character and cast of miscarriage justice. prevent a must intervene courts of -Appeal and Error —Cross-Examination—Characteriza- 18. Same — op Dependant. tion during Prejudicial re- trial reversible error was committed and second-degree sulting murder in conviction of defendant’s appears upon prison, a review where it inmate State fellow prosecutor’s by Supreme Court that the trial court record cross-examining purpose was to characterize sole defendant inmate, prison there- and intractable fractious 750.317). (CL 1948, by depriving trial him § fair 2, Quinn, Division Appeals, from Court Appeal Corlrin, JJ., reversing Kavanagh and T. J.,P. Gr. (John C.), Dalton J. Sub- Jackson, remanding 11, Docket No. 11, (Calendar mitted June 1969. Certiorari 1, Decembеr 52,198.) Decided No. denied Court of the United States Supreme May 4, 1970.
13 Mich App reversed. Johnson was convicted of murder Roger Defendant to the Court degree. appealed second Reversed and Appeals. people ap- remanded. Reversed, and trial court affirmed. peal. *5 637 Boger Kelley, Attorney General, Robert A. J.
Frank Derengoski, Barton, A. General, Bruce Solicitor Attorney, Adams, Assistant Prosecuting Paul R. people. Prosecuting Attorney, for the Goler, for defendant. F. William stabbing occurred a 24,1965 October J. On Adams, prison. dining in hallway a room Jackson outside prison of inmate, died as result Clark, a Prank knife wounds ant, by The defend defendant. inflicted against upon proceeded Boger Johnson, was charging He was by with murder. 1 him an information degree jury guilty in the second of murder found verdict.2 Appeals, appeal of Court the Court to
On by the defendant held that the cross-examination prosеcutor’s improper that the regard argument the law to final prejudicial The error. constituted as self-defense Appeals 13 Mich and remanded. reversed Court Upon application App this Court 69. county, attorney
prosecuting leave to for Jackson questions appeal granted. Mich 803. Six 381 presented. They dealt with in the will be were sequence during the course of arose the trial.
1. prosecutor’s exam- error committed Was regard separate, distinct, ination defendant and unrelated offensesf open- following contained the defense’s
ing statement:
[1] [2] CL CL 1948, § § 750.316 750.317 (Stat Ann 1954 Rev (Stat Ann 1954 Rev § § 28.548).—Reporter. 28.549) .—Reporter. Mich bring through will out
“Now, we stand, will take the defendant, who witness, the background, incidentally, something such his about you get some so that can will material to of what kind of man the is.” idea During of defendant direct examination *6 attorney, brought an that defendant was it was out Michigan inmate at the because of Prison of Southern State committed while a murder which was who killed another defendant with someone was fellow.
Upon asked: defendant was cross-examination, yourself you as a calm characterize “Q. Would man anor excitable one? myself being calm.” characterize as “A.
Thereupon, objection, ques- without was regard tioned with various incidents that had oc- prison prison guards involving curred in and con- prosecutor questioning by victs. The the straightforward. simply Defendant was asked to explain prison tell about or incidents inside the him would make irritable. Finally, questioned regard to in- he was an May objection 1966. The 18, cident that occurred on court, the the made his counsel was sustained judge ruling beyond that the too far incident was stabbing date when the occurred. prosecutor go an
The then endeavored to into in- cident that occurred about a month before the stab- objection objection bing. again An made. The was overruled. The court stated: only purpose they being “The for which are offered question disposition on is of the defend- already It is in ant, is issue now. record. purpose being “I assume that is the it is of- * * * n Is fered. that correct? Boger Peoi>le op Coukt. jury so understand that will The Court: “The being They only purpose for. offered proof consid- shall not be not substantive are ered so to the commission stabbing, alleged an 24, 1965, on October offense stabbing, referring to.” I am question proceeded de- then regard incidents, all to a number fendant with stabbing prior October of which occurred passages in this cross-examina- 1965. One of following: is the tion you were 24, 1964, Then, December “Q. O.K. you up convict. Do on another for assault
written remember that? 24?
“A.
“Q. 1964.
“A. What? 24th.
“Q. December December. Yes. “A. hаving argument? “Q. Do remember an “A. Yes. *7 argument. it an You called called it “Q. You not told— n you talking officer, a discussion you separated you, the officer and then followed the fight Do after the officer other man and had a left. you remember that?
“A. we Yes, did. you explain “Q. Can that? fight. It
“A. was a something going' man “Q. to to You were settle right? man, is that requested fight. “A. He Any somebody requests you fight, go “Q. time along- right? it, is that try No, “A. I don’t. I would and avoid it my ability. best of
“Q. In this case him? followed going “A. We direction. The same separated fellows us.” 382 Mich 632. op the Couet. Following questioning prose- the above when the attorney attempted go cuting into an incident that stabbing, upon months three after the that ob- occurred subsequent jection that “incidents occurred be and immaterial, this matter” would court remote and this irrelevant ruled, before, that such incidents were too questioning
line of concluded. prе- on cross-examination has been length holding at some of sented in view the of Appeals prose- Court cutor, mosphere “Such conduct highly prejudicial case, created at- App
for the defendant.” 13 Mich general As a rule, the extent and of cross- control prosecution examination for a crime is left .largely to the sound discretion of the trial court. People (1950), derog- v. Fedderson 327Mich 213. If atory questions put to a it is for the witness, (People trial court to control such conduct v. Davis 241), rulings [1912], 171 Mich will its not be except showing reversed on a abuse discretion. When a defendant takes the he waives his stand, right any question constitutional to refuse to answer may be material to the would, case and which any legitimate in the case of examination. 1. other witness, cross-
People Dupounce (1903), In this case, the entire trial revolved around question as to whether not or defendant had stabbed in self-defense or had committed murder. deciding question proper
In cross-examina- tion of defendant as to other incidents, the Court Appeals the, following considered cases decided by this Court: (1922), v. Boske 221 Mich 129, 135, states reputation “an put accused’s character cannot be present in issue the State.” In case, defend- *8 placed ant’s character was issue the defense opening in the statement. Roger People 641 v. op (1932), cross- People Mich on Hill v.
In good witnesses, character of defendant’s examination questions attorney re- prosecuting asked the gard nothing knew the witnesses he assumed incidents to suggested the which about but during developed subsequently trial. might the improper since held to be was The cross-examination credibility or go test the witnesses’ to it did not knowledge good reputation char- of defendant’s acter. (1889), People 110, testi- Pinkerton In v. vilify persons
mony to that tended of various respondent of respondent convict the was used majority keeping of the Court ill fame. A a of house respondent a fair trial had not had held that the pertinent were the two issues because sight of charge the mass were lost criminal testimony. Wright (1940), 20, differs from 294Mich charged. present In of the crime case because Wright, charged and convicted the defendant charge, manslaughter. as here, was no There attorney by prosecuting In that case “the murder. inference impression gave or insinuation improper jury gun of his made use that defendant had in the the Court held that other occasions.” The prosecution which did not involve crime plan, the cross- motive, intent, scheme, element prior indicating motive examination as to incidents or intent should have been excluded. present case, the court confined the cross-
In prior incidents which occurred examination to prose- stabbing. attempt was made No wrongful impression minds cutor create jury by insinuation or Rather, innuendo. bring questioning from calculated to defend- re- ant his own evaluation of his and to character *9 382 632. op Opinion the Court. being Finally, his claim of man. fute calm the judge very at the time of was cross-examination charge careful to the that all such question credibility went to the not of and was proof to be considered as substantive as to the com- of mission the offense on 1965. October proper. cross-examination No was error was com- mitted.
2. by prosecutor’s Was error the committed examina- regard tion to the details the of defendant of previous degree? conviction murder second of As above noted, counsel for defendant on direct brought up subject examination first of defend- previous ant’s conviction of murder in the second degree. attempted At that time counsel defendant’s go into Upon the details of the earlier crime. objection by prosecuting attorney, this line of questioning by judge. Upon was halted cross- question examination, the elected to de- regard fendant with crime. This line earlier objected questioning was defendant’s coun- again questioning sel. The court ruled that such pursued. improper should not It was not for the prosecution question regard defendant with to his prior of the conviction view fact that this line of questioning opened up was defense counsel on questioning quickly direct examination. The cut judge. off the trial No error was committed. refusing permit Did the trial court err in introduction the criminal record thе deceased at the time the trial this cause? The criminal record of the deceased, Frank Clark, brought by subpoena tecum, into court duces Roger L969] op the court made
Upon trial, the commencement following statement: prose- and the defense counsel Now, “The Court: Michigan bu- Police State reviewed cution have concerning deceased, record identification reau of appears com- that he has offenses which it from mencing including July, up to and 1948, and imprisoned. That last *10 for which he was offense does not part appear a record but it is on the official are in the listed therein of the file. And offenses entering breaking ; an automobile and order thereof: investigation entering; investigation breaking and of attempted larceny entering breaking 1948; in of and breaking and 1948; October, in from an automobile entering nollе- which was in of 1950, December prossed; troit, battery De- and conviction in an assault days in the which the deceased received 90 for 1952, which, of Detroit House of Correction back any bearing have on course, would be too remote to jury today. the court and the On the matter before probationary February a there was sentence 3, 1953, breaking night- given time. charge entering of and for breaking disposition There no of a is shown May entering May charge in of 1954. Also in and of 1954 there was larceny investigation grand an of complainant when the refused which was dismissed complaint, July sign 7, de- 1955, and on possession of for and draft arrested sale ceased was cards. disposition shown. then there No And is July breaking entering and on offense of a sentence 1960, for which the deceased received years; then last for of to 15 and offense 2-1/2 7,1963, which the deceased was for the October sentenced burglar possession tools. offense requested permission has “Now, defense counsel having time, the court at this file, examine this and information counsel the furnished to defense going already is on the record, stated has been ruling time as the' defense of until such reserve its and case, introduced has been self-defense bridge at time.” will cross then we 6áá op During presentation judge defense, ruled as follows: your go requesting
“I want to into this matter of prison produced that the record of Mr. Johnson he your for and the court examination, at this time deny going to that for the that if Mr. reason Johnson knowledge at the time this incident occurred had no anything happen that should to he it file, hearing anyway, could have on his state of mind, no anything bearing else that is there that had a on his state of himself; mind he should know about your request prison so for examination of his record is denied. May please “Mr. Barton: it the court, is that Mr. prison referring
Clark’s record to! “Mr. Goler: Yes.” quarrel-
It contention of defendant that the argumentative disposition some and nature already placed the deceased had been in evidence many inmates who testified for the that, defense and therefore, the criminal record of the deceased should *11 directly bearing have been admitted in evidence as upon person the kind of the deceased was. How- transcript ever, we find in the of the trial no offer proof attempt or even an to introduce the record in evidence. On the record before us, facts con- tained in deceased’s criminal record would have been wholly immaterial and irrelevant. Furthermore, there a full disclosure of these facts to the de- might fense for what use the defense have been able mаy to make of them. passing Also, it be noted in that of witnesses for defendant with re- gard quarrelsome to the nature of the deceased was allowed. find "We no error. Boger
4. prosecutor in his ar- committed error Was gument jury had the that burden to defendant points proving the “three self-defense”?
5. prosecutor in his ar- committed Was error gument jury “it that to the that have retreated”f is uncontradicted could the defendant prosecutor in ar- committed
Was error gument no evidence in this that is to “there us, has told that than what the other case anybody had a other than defendant”? knife argu- go closing questions all these Since prosecutor, interre- since ment of together. questions bewill treated lated, the closing argument by During the course following place: prosecutor, the took that the defendant have “It is uncontradicted could gives no retreated, reason whatsoever as he why did not. he was asked cross-examination— “He please— If the Court “Mr. Goler: (continuing): you?’ “Mr. —‘could Barton please, I “Mr. Goler: If the do not want to Court interrupt think that counsel help any do I than can but so, more misstating is this. any no “There is evidence here uncontradiction of forth. and so of this man’s retreat improper. question is a This “I think jury. for the of fact you, jurors; Let me state Ar- “The Court: guments and to applies counsel—this both Mr. Barton argument *12 Mr. of counsel are not evi- Goler— arguments the if do dence, of counsel not con- you jurors them to from find be the facts as form to you disregard any then case, in the the evidence argument portions of counsel which are of the you facts find them to be. Glo with the as conflict ahead, Mr. Barton. you, Tour Thank Honor. “Mr. Barton: jury, gentlemen I, course, “Ladies argument anything say in this no have intention by you evidеnce. The that is to be construed people you evidence the wish that consider is you from what heard the witness stand. strictly say morning I is am about “What strictly argument, I it what feel should be taken you the from the facts which heard from witness stand. any not it to statement, I do intend Iif make “So, merely something reflect- fact but a statement can inference that ing be and the obvious it. from drawn point point, in a different I will state that “On Mr. asked Clark cross-examination manner. On you through said directly: gone have [sic] Could yes, he open hesitation And after some door? open through gone door; and he have could he any why really give he didn’t. I reason didn’t your for consideration. that is leave Mr. was in the “It uncontradicted Clark process leaving dining room and he act or leaving dining tray after in his hand had his way out; Johnson, Mr. and he room dining actually room, followed him a waiter Although Mr. there is one mаn said who John- out. son place.” might been out there in the first have re- The cross-examination to appears closing argument in his record ferred as follows : point, And at that the door was “Q. course, guards open him and were im- behind there two
mediately right? him, behind is that No, “A. wasn’t. *13 Roger 647 Opinion of the Court. They just they? weren’t door, were inside “Q. “A. they was. Yes, gone through open “Q. You could have door very easily, by pulling you yourself, you but felt had to defend right? out, the knife is that knife, he for it “A. When reached his was the way for me. one left Right. pull your get going To knife and to “Q. right? man-to-man, into the battle No, it wasn’t. “A. way open you other “Q. What then? way open point pull The to me at this “A. try guy way the knife and out stab this in a not to anything, just keep him or kill killing to—to him from quite keep my me, to am satisfied with —I appearance keep and I so forth and would like to way they them in the same are in. you pulled But see. out the knife and it “Q. used going through open on Clark rather than door immediately you? behind police you If were there, testified. “A. yes please. you pull “Q. Just answer or no, Did going out the knife it and use on Clark rather than through open right you? door behind I did.” “A. Yes,
The should never have been misled that the given law evidence statements of the the court, not the or the defense attor- ney, were to control. opening
In statement, counsel for the defense said: “The evidence in this case will emanate from all testify
the witnesses who from this witness stand you under oath, and I believe the court will tell it upon you your that evidence must base decision as to the facts, what the facts are.” judge charged jury: give you, “Under your the instructions I find ver- dict from the evidence in this case that has come [Bee. Mich Opinion of the Court. other from no stand you witness from to place. *** solely by guided you the evidence will be “And you give in аr- it to shall court law as the and the your riving verdict. at jurors, say you, or not those whether for “It is part inor in whole substantiated have been claims produced before here that has been evidence * ** open you in court. already jurors, *14 that instructed I have “Now, arguments evidence.” not counsel are claim in a regard involved elements to the With prose- argument closing the his in self-defense, cutor said: judge you will find that the will I believe “Now, you you for if would listen I wonder instruct —and things that three there are these instructions —that the claim to in order sustain be established must that must be established First, it of self-defense. Roger fault on Johnson, was without defendant, aggressor part not the further, that he was and,
his difficulty, in his bringing there was unless on the in mind danger of in he imminent' belief grievous suffering losing from some life his own injury.” bodily argue thereupon proceeded prosecutor to his The he believed self- and thе reasons the facts version of made out. had not been defense closing argument in for defense his Counsel stated: will instruct that the court believe Goler: I “Mr. prove Roger
you to not does have Johnson you But, in killed Frank Clark self-defense. that he beyond you prosecutor prove to must that the rather, acting Roger was not self- a reasonable doubt that person when he killed of his defense or Frank the defense fail to and if the should Clark; Roger op your not one of prove must be verdict that, then guilty the defendant.” for people, prosecutor, stated: rebuttal for the
The (doler in a criminal that the burden is correct “Mr. beyond prosecution prove case their is on trial doubt.” a reasonable charges judge’s on self-
The trial objected counsel. defendant’s were not defense ap- judge’s charge regarding is self-defense in transcript lеngth pages proximately five charge. It the statement: includes jurors, is where this defense “Now, in all cases upon people to show that the made, burden is charged guilty to show offense accused jurors and circumstances as convince facts such killing not done in self-defense.” that the opening attorney in statement The defense point was careful out: impose [interpose?] we will “The defense which today person will be that defense
here or self-defense. The court will also instruct *15 present, proper ingredients the are that if' self-de- words, In is a valid other there are fense defense. may some conditions under which a human life be may justifiable.” (Emphasis added.) taken and it arguments judge, As was stated the trial they nor The counsel are not evidence law. jury correctly charged by judge. No was the trial exception charge. was to that Under the cir- taken prosecutor’s argument casе, cumstances of this regard prejudicial. not Avith to self-defense was Finally, contradicting by as the statement argument that “there his case, than what the de- evidence in this other is no anybody had a knife other us, fendant has told op following cross-examination defendant,” than the Colladay, has been di- people’s Mr. witness, attention: to this Court’s rected you a knife? that Clark carried know “Q. Did surprise people in when the “A. It did come they him. found a knife on me that first aid told he had a knife. aware wasn’t Colladay? you Mr. that, told “Q. Who working general people first in the “A. Just who. aid. I don’t remember shortly occurred, after this incident That was “Q. was it not? Yes, it was. “A.
“Q. “A. Yes. a knife on him? That found happen fall see this knife You didn’t “Q. you? did floor, supposed to have “A. The knife that Frank was had? right. That
“Q. I didn’t.” No, sir,
“A. transcript following also contains testi- Colladay:
mony of you “Q. Who told that he had had a knife possession he tаken into the hos- at time pital? working “A. One of the in first aid. nurses By “Q. ‘one of the is this civilian nurse nurses,’ inmate? inmate. No, sir; “A. “Q. an you An Did the inmate tell what was inmate. done with the knife? No. mentioned Frank had had
“A. He a knife. any reported Did he tell that he this to “Q. hospital? personnel of the
of the civilian any tak- It conversation “A. wasn’t—there wasn’t place. just ing had a ‘Well, It a remark: he *16 651 Roger too.’ That is knife, ‘He had knife,’ way knife. had a that he that, knew I right, Strictly as hearsay far is that then, “Q. concerned? any. I I it. don’t didn’t see see "Well, didn’t “A. know.” Colladay hearsay of witness statements
The scarcely dignity if this evidence. Even rise to prose- argument considered, prejudicial of the court’s in view not cutor was careful quoted cautionary to the above statements “arguments are not evidence.” counsel questions Upon de- raised a review of all of Appeals is find no The Court of fendant, wе error. trial is affirmed. The court reversed. and E. C. J., T. Kelly, Brennan, Dethmers, concurred J. JJ., Adams,
Black, {dissenting). defendant, The M. J. T. Kavanagh, Michigan, an inmate of the State Prison Southern county by jury in the murder was tried for Jackson inmate, and was found Clark, of Prank fellow degree. (CL guilty of murder the second 28.549].) § § [Stat Ann 1954 Rev 750.317 appealed this defendant Prom conviction Appeals, claiming irregularities the trial Court at though represented court-appointed even he was Appeals, upon grounds counsel. shall Court of discussed, herein reversed and remanded App for 69. Prom this decision a new trial. Mich delayed application filed for leave to application. appeal, granted his and this Court Mich 803. ap- composite
The crucial issue raised peal is whether reversible error committed prosecutor’s cross-examination *17 382 T. M. Dissenting Opinion J. Kavanaoh, regаrd separate, good and in character to his as offenses. distinct, and unrelated point, following the trial: the record discloses On of the defendant at cross-examination [By prosecutor] Barton, assistant Mr. Mr. “Q. you that correct? Johnson, left-handed, is “A. That’s correct. your hand, with left You took the oath
“Q. right? sir. Yes,
“A. you? How tall are
“Q. a half. “A. Six one and yourself you as a calm characterize “Q. Would one? or an excitable man myself being I calm. “A. characterize any you have been in see. At time while “Q. I you prison ? have that calm attitude on occasion lost me, I have had on what “Q. occasions tension On me irritable. make you irrita- of tension would make
“Q. What sort ble? My most sick all the time.
“A. mother is prison any “Q. of incident inside Would sort you make irritable? Possibly. “A. Possibly. would that
“Q. sort incident What please? be, things. might every
A“A. It week number of a month or so. up things you, on “Q. What sort would build you, please? bothering up would that build you? anybody “A. I didn’t hаve too much trouble about anybody. bothering me, I didn’t because bother “Q. You had much inside the haven’t trouble you? prison people bothering about exactly. Not
“A. Roger Peovle Kavanagh, J. by T. M. Dissenting exactly’? Have you ‘not mean do “Q. What bother- guards inmates or other yon with trouble had prison? ing inside guards. few troubles had a have “A. “Q. “A. With troubles? sort What you— who are guards. (Interrupting) With
“Q. they way would address guards? In the With “A. me. you. way You would address In the “Q. right? you, way they is that address like don’t I don’t. No,
“A. *18 you you? they bothers What address do How “Q. ? that about boiley child. [sic] I am a fashion, like In a “A. have used that that guards inmates other or “Q. When you you, irritable, is approach become to kind right? I mean. what that isn’t No, “A. “Q. “A. What please. you then, mean me what Well, tell incident wouldn’t this one mean, that I a con- me—I am would make It irritable. make me I am a man first. second and I am a convict vict, but everyone knows going make sure to You are Q. right? you that isman, are you implying. are in that fashion It is not “A. No. “Q. question. original get Let’s back you involved irritable and been become “Have people you prison felt any because at disturbance you? getting harassing you after or were convicts, with officers involved I became “A. I irritable. felt because it wasn’t but please? Why it, “Q. you familiar with institution, if are In “A. it— (Interrupting) was, tell me what it Just “Q.
please. Go ahead. yes no. or can’t answer “A. I “The Court: to, you You do not have asked He why. to him tell Kavanagh, ToyT. M. J. Dissenting proceeded to tell him What —I Witness: “The
why. ahead. “The Court: Go you you they to do institution, want In this “A. — you they say command, for to do whatever right. supposed they wrong or You are whether do it. to my your say, shine shoes,’ shoes, ‘shine “If up you. you get on wrote a ticket objected [By Barton] sometimes “Q. Mr. You up you? right, and had tickets written that
that, is “A. Yes. “Q. “A. you that?
And would become irritаted about INo, didn’t. you may in the “Tickets were observe wrote, as I would tell incident, records of the but because something, say, you him—I ‘If me to do tell wish for way can understand. shout me so Don’t anything you normal. did, at me like Just ex- go plain. you hall Just tell me want me you want office or whatever me to do.’ find what “Q. Johnson, Mr. out sort situation you hap- something react, would make pened let’s take ago. than a month less quarrel involved at that time in a “Were Bailey prison? and Officer in the OfficerGrinnell attorney] [defendant’s If the : Court “Mr. Goler *19 argument please, barring any the I deceased, or material. do not see that this is relevant only disposi- that his Honor, “Mr. Barton: Your particular especially, in crime case, tion this this person, has characterized himself as a calm since he very much relevant and material. is talking something are about “The Court: We question happened time after the incident some we? here, aren’t your half Honor, but about Yes, Barton: “Mr. person
year same afterwards; but, nevertheless, the the and under same is involved prison circumstances, conditions, Eooer M. Kavanagh, T. Dissenting Opinion loy unknown factors a lot of haveWe Court: “The proper foundation. without think, here, involved beyond far go That is too that. into can’t We question here. incident [By Barton] written have a ticket Did Mr. “Q. days you, 25, about then, on October —I day sorry incident? after this am —the I didn’t. No, “A. sorry. September. September 25, On “Q. I am incident? 1965, a month before Yes, I did. “A. refusing in a man- a direct order That was for “Q. extremely that correct? insolent, is ner No, “A. it wasn’t. attorney] that this [defendant’s : If the Court “Mr. Coler please, again I relevant, think is I do not at is here to this case do not think that it material all. prosecutor might bring perhaps “I think that they petty things up any here, but little, number of anything to with this case. don’t have do May please man Court, it this “Mr. Barton: credibility and, Both his is on the witness stand. particular disposition violations this toward case, are in the case. and his entire mannerism issues some criminal “Mr. Goler: If the has put evidence, of man that wants to into record he go any credibility, to his felonies, arrests, convictions of material; I think it is but for infractions Michigan Prison, I don’t at rules Southern or relevant in this case. think it would be material purpose The for which are “The Court: disposition being question of offered is on this already is in issue now. It is defendant, in the record. only purpose being of-
“I assume that it is fered. Is that correct? Yes, “Mr. Barton: “The Yoar Honor. will that is Court: so understand only purpose they They being offered for. proof are not considered substantive shall not be *20 Míen 382 Kavanagh, T. M. J.
Dissenting
as to the commission
so
offense
stabbing,
alleged
an
stab-
24, 1965,
on October
bing,
referring
amI
to.
ahead, Mr.
“Gro
Barton.”
people’s position
It is the
that defense counsel had
put
by stating
defendant’s character
in his
issue
opening remarks that
take the
defendant would
stand
upon
“what kind of man he is” and that
tak-
show
ing
stand both
defendant’s character
credi-
bility
Refuting
position
un-
of
were
issue.
prejudicial
tenable and
Appeals
to a fair
trial,
Court
72):
(pp
stated
71,
argument
appeal
“The
fail.
offered
must
of a
character
defendant cannot be attacked unless
puts
by offering
he
it in
first
issue
evidence of his
good
response
character. Defendant’s
on cross-
way
put
having
examination can in no
be treated as
consequently,
his character in
and,
issue
no rebuttal
good
People
charatcter
order.
was in
v.
See
Boske
(1922),
We with the decision of the Court of peals. adopted by
It is rule, well-settled this Court in People Minney (1909), v. 155 Mich 540,that: “‘(l)It permitted prosecution is not prisoner, attack the character of the unless he first puts by offering good that in issue evidence (2) permitted character; it is not show defend- by showing particular ant’s bad character (3) acts; Roger *21 Dissenting Opinion T. M. J. Kavanagh, by permitted prisoner tendency in the a it is not show disposition to commit the crime with which he is or charged; other permitted (4) give it is not evidence prisoner, crimes of the unless so by particular connected circumstances with the crimе proof in issue as that the stances has some than such as of one fact with its circum- bearing upon the issue on trial other expressed foregoing three ” propositions.’ single in the rec- cannot a instance entire "We find good his offered “evidence of ord where defendant character.” The testimony relating to bulk of the by given witnesses and “character” was defense exclusively deceased, the character of the dealt depicting argumentative
him and This bellicose. permissible (People Dunn 233 Mich [1925], v. adversely 185) neither works nor introduces de- good fendant’s character. See 1 Jones, Evidence (5th Ed), p § 1 Criminal 172, 305; Wharton’s Evi- (12th Ed), only testimony relating § dence 228. The good object- than the character, to defendant’s other ed to came from a defendant, cross-examination of upon witness for but this also was elicited defendant, prosecutor. by cross-examination justification upon only for the attack defend- readily acknowledgedby people ant’s character is in its brief: “In the instant the defendant took case when credibility In witness stand issue. addi- according attorney’s stand, he took the to his tion, express purpose opening statement, show- for ing In this, ‘what hind man he is’. view of
prosecuting attorney asked the defendant whether person; a the defendant so he was calm .characterized ques- prosecutor then a series of himself. The prison concerning defendant’s infraction of tions by showing sought discredit the defendant rules falsely characterised had himself. Míen: 382 Kavanagh, Dissenting Opinion T. M. J. prosecutor’s .purpose enu- examination Tlie credibility.” went to the defendant’s above merated espe- reputation, that man’s feel, however, We cially is also the criminal defendant-wit- where he. lightly an ensnared too valuable asset ness, is adversary insidious tactics and tenuous rea- such soning.
Opening accorded the of counsel are not statements weight prosecutor’s of evidence and a stature upon opening single un remark is reliance casual v. Detroit 1963, 507.1; Ambrose warranted. GCR (1968), Company 445; 380 Mich Edison (1913), It is after de Mich 194. Koharski *22 directly testimony proofs or has introduced fendant prosecutor may good test as to character that his credibility of or discredit those the proofs they as relate to defendant’s character. People People (1939), 123; Neal Mich v. See supra; People (1922) v. 221Mich 129. Dunn, The failure to make Boske v. quite
this initial distinction naturally inevitably precipitous leads a com- pounding we allow the Once errors. cleverly predicate elicited self- statements of to characterization
upon open- and casual inadvertent permit ing ity him to remarks, test credibil- we must testimony. initial But neither the error of such its can be sanctioned. nor cumulative effect People rule stated v. would adhere to the We (1900), 483: Gotshall previous rule that the it is the well-settled “While may inquired into of a witness life and character to elicit determining may facts which aid yet testimony, his will attach to what credence duty keep such examinations of the courts to it is the it is bounds. When reasonable within manifest questions design not to elicit or effect of suspicion upon the character and but cast facts, 19G9] Koger '659 Dissenting Opinion by M. Kavanagh, T. J. credibility witness, intervene, courts must miscarriage justice.” (Em- trials will result a phasis supplied.)
A review of the record us convinces thát the sole purpose prosecutor’s line of cross-examination was to characterize defendant in- fractious and prison respect tractable inmate. His in this success deprived defendant of fair trial.
"We..agree Appeals prejudi- with the Court of cial and error reversible was committed and would affirm their decision of reversal and remand for a new trial. Kavanagh,-J.,
T. Gr. did not sit. B’NAI CONGREGATION v. MARTIN. SHOLOM Subscriptions Pleading —Motions—Amendment —Affirma- Pledges—Customs Usages. tive Defense — amend, answer, Denial of defendant’s motion to an action held, purported subscription agreement, error, where amend- ment was offered so as to assert the affirmative defense that pledges synagogue law, ato Jewish have been held Jewish *23 custom, tradition, usage obligations to be moral contracts, legally and not enforceable and defendant’s motion supported by rabbi, to amend was the affidavit of a question might raised a of fact as to Jewish custom that controlling upon parties. [7] [1, [2, [5] 50 Am 41 Am 17 Am Jur 4] 21 Am Jur 41 Am Jur, Jur, Pleading Subscriptions References 2d, Jur, Pleading 2d, Contraéis Customs and § for Points § § 104 et § et et 288 et seq. seq. Usages seq. in Headnotes seq. § 23 et seq.