People v. Smith

106 Mich. 431 | Mich. | 1895

Grant, J.

(after stating the facts). 1. The first contention of the respondent is that there was no evidence of any intent to commit the crime for which he was convicted, and that the court should have directed a verdict of not guilty of either intent to murder or intent to do great bodily harm. The difficulty with this defense is that no such contention was made at the trial, and it evidently did not then occur to the learned counsel for the respondent that the question was one of law for the court, and not of fact for the jury, for he made no request to the court to direct a verdict. This objection, therefore, comes too late. The next complete answer is that there was ample evidence to justify the finding of the intent. It is suggested that the intent was to rob. Undoubtedly this is true, but the same state of facts may often show two intents. The assailant evidently intended to inflict a blow of sufficient force to render Mr. Goudberg unconscious while he locked the store and escaped. He used a deadly weapon, and struck a vital part of the body. The intent was to do great bodily harm, in order that he might accomplish the robbery.

2. The defense was an alibi. The respondent introduced evidence tending to show that he and his wife were at his father-in-law’s house, and left and drove home together in the evening, and that, if this evidence was true, it was impossible for him to have committed the crime. A girl, then about twelve years old, was living at respondent’s house, and was a witness for him. Upon the direct examination she was only questioned as to when he cut his whiskers. Upon redirect examination, she testified that she was home on the day the assault was committed, that she had no recollection of the time she went to bed, but that respondent was at home when she did go. Upon the second redirect examination, respondent’s counsel called her attention to a conversation between, him, her, and the respondent’s wife. She testified that she remembered an occasion when respondent and his wife went to town twice in one day, but did not know what day it was, nor what time they came back, but that it was after dark. She also testified that she remembered speaking to Mrs. Smith, when she got home, about the time. She was then asked to state the conversation, which the court refused to premit. The only possibly legitimate purpose for which this conversation could be used was to refresh the witness’ recollection as to the time. She had testified that she remembered it, and it was unnecessary for her to repeat it in order to refresh her recollection. The testimony was properly excluded.

3. A witness for the people, in reply to a question, “Do you know the defendant?” replied, “Yes, sir; I was unlucky enough to get acquainted with him.” The latter part of the answer, which was not, of course, responsive to the question, was promptly stricken out by the circuit judge. The precise complaint seems to be that the judge was not sufficiently severe in rebuking the witness, and in not instructing the jury to give no weight to the statement. Comment upon this. objection is unnecessary. New cases would go unreversed if such trivial objections as this were to prevail.

4. A reversal is asked because of remarks made by the prosecuting attorney in his argument to the jury. The respondent’s wife had testified t.hat she and her husband were at her father’s in the evening, and to the time when they left. This time was very material. Neither her father nor mother was called as a witness. The prosecuting attorney commented upon this fact. The prosecution was under no obligation to call these witnesses. Naturally, they would be called by the respondent. It is difficult to understand why their unexplained absence was not a proper subject of comment. It is not, however, necessary to determine this question, because the court at once decided that it was not proper for the prosecuting attorney to comment thereon.

The prosecuting attorney, in his argument, referred to the fact, which appeared in evidence without objection, that, at the time the respondent was arrested for this offense, he was in jail, under arrest for another one. Counsel for respondent made no formal objection to this, nor did he request the court to instruct the jury in regard to it. He interposed an exception without any objection. The entire arguments of counsel are not in the record, but only those portions of the argument of the prosecuting attorney upon which error is alleged. Bur it is a fair conclusion from the record that this statement, and other similar ones, were made in reply to the argument in behalf of the respondent that he had led a life of usefulness. There was evidence upon which to base these comments. Even if it be conceded that these comments were such that the court might with propriety have checked them, we cannot hold that there was such an abuse of legitimate argument as to justify a reversal of the case.

5. A witness for the respondent, one Monje, testified that Mr. Goudberg said to him that he “did not know the man, but the bolt proved it.” Upon the argument* the prosecuting attorney read to the jury from the deposition of Mr. Goudberg taken upon the examination, in which he testified that he had never seen the bolt before it was then shown him. It was claimed that the conversation occurred before Mr. Goudberg was examined.. From this the argument was made that Monje could not have had such a conversation with Goudberg. It is. claimed by the prosecuting attorney that the entire deposition of Goudberg was received in evidence, while the defense claim that it was not. The defense offered certain parts of the deposition upon Goudberg’s examination, which, it is claimed, contradicted his testimony upon the trial. The court ruled that the entire deposition must be received. The entire deposition was, therefore, in evidence, and without exception. But this question becomes of very little consequence in view of the fact that the witness testified to the same thing at the trial.

6. The remaining allegations of error arise upon the charge of the court and refusal to charge as requested. Respondent’s counsel presented twelve very long requests, five of which were given in full, and one in a modified form. They involve no principles which are not familiar to the profession, and it is unimportant to state them here. The oral charge of the court covers fifteen pages, and is a full and clear statement of the law of the case. It covers every point on which instruction was necessary, and fully protected the . rights of the respondent.

Conviction and sentence are affirmed.

The other Justices concurred.