163 Mich. 79 | Mich. | 1910
This case is here upon exceptions before -sentence, the respondent having been convicted of the of.fense of assault with intent to do great bodily harm less than the crime of murder, the information charging that ■-the respondent at the township of Austin, in the county of Mecosta, on October 6, 1908, made an assault upon one Eewis Powers, with intent him, the said Lewis Powers, then and there to kill and murder. Upon arraignment the respondent stood mute, and a plea of not guilty was «duly entered. The case came on for trial before a jury 'duly impaneled and sworn at the February, 1909, term of said court.
After the trial had proceeded into the second day, and rafter the people had rested their case, and the respondent •had sworn two witnesses, the misconduct of one of the jurors was brought to the attention of the trial judge, who made an investigation into the matter by an examination ■of divers persons, from which it appeared, to the satisfaction of the trial judge, that the said juror had, during the trial of said cause, and after the people had rested their case and two witnesses had been examined on behalf of the respondent, stated publicly, in a saloon in the city where said trial was being had, as follows:
“I tell you when I am on a jury, and get my mind made up, by-, it will take more than they have got now to change it.”
The trial judge, having upon investigation become sat
“At this point, it having come to the knowledge of the court that one of the jurymen, Ed. Lewis, had disqualified himself from further acting as a juror in this cause by Laving expressed in public, at the time when the cause was but partly concluded and before hearing all the evidence on the part of the defendant, the following: (here follows the language above quoted) thereby, in the judgment of the court, disqualifying him from sitting further in the case, therefore, it is ordered by the court now here that the jury be, and is hereby, discharged from the further consideration of this cause. And it is further ordered that this cause be continued until the next term of this court, recognizance to remain in full force and effect. The attorneys for respondent excepted to the action of the court in discharging the jury, and moved that the respondent be discharged, having been once in jeopardy, which motion was overruled by the court, and exception taken by attorneys for respondent.”
Thereafter, and at the September, 1909, term of the court, before another jury was impaneled and sworn in said cause, the respondent filed a plea of former jeopardy, setting forth the facts above stated in detail, and at great length, which plea was overruled and denied by the court, and to which ruling respondent’s attorneys duly excepted. Thereupon the court proceeded to try said cause before a jury.
Upon the part of the people the evidence tended to show that, on the evening of October 6, 1908, the respondent, while driving on the highway with his brother, met the said Lewis Powers; that the respondent there accused the said Powers of having been guilty of improper ■conduct with the wife of respondent, and, after some words and threats, the respondent shot said Powers with .a revolver, inflicting a severe wound in the region of the
The defense relied upon mainly was temporary insanity, and that respondent was not responsible for his conduct and not capable of entertaining a criminal intent, and there was evidence tending to show that his mother and other relatives had been insane. There are 57 assignments of error. We have carefully examined the record, and do not deem it profitable to examine each of these assignments separately. They may be classified as follows :
(1) Error in overruling the plea of former jeopardy.
(2) Errors in overruling objections of respondent’s counsel in the cross-examination of respondent’s wife, Gazella Sharp.
(3) Rulings of the court in overruling objections of respondent’s counsel in the examination of Mary Smith Jackson.
(4) Errors in argument of prosecuting attorney to the jury.
(5) On the charge of the court.
(6) In refusing to charge as requested.
We shall consider these questions in the order in which they are above stated.
“We think that in all cases of this nature the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere.”
We are of opinion that the trial judge did not err in overruling and denying the plea of the former jeopardy.
“It was the duty of the circuit judge, upon the cross-examination of the witness, to permit such reasonable interrogation upon the subject as would fairly disclose to*84 the jury her true character, and thus enable them to judge of the weight which should be given to her testimony.”
See, also, Knickerbocker v. Worthing, 138 Mich. 239 (101 N. W. 540), and cases there cited. We do not deem it necessary or profitable to here set forth the questions referred to.
“We are not disposed to reverse convictions in criminal cases because of the impassioned arguments of the prosecuting officers, unless we can clearly see that such arguments were unwarranted by the evidence and probably contributed to the result.”
We find no reversible error in the record, the conviction of the respondent is affirmed, and the circuit court is directed to proceed to judgment.