209 Mich. 284 | Mich. | 1920
An information was ¿filed in the recorder’s court in.the city of Detroit, charging the defendant
The defense of defendant was that he sold them on a commission for Schneider, alias Kelly, and that he had no knowledge they were stolen. The proofs, however, upon the part of the prosecution showed that the defendant admitted he purchased them from Schneider for $900.
1. The first point raised is that the cigarettes
“Q. Did you see your property later, Mr. Quandt?
“A. Yes, a good part of it.
“Q. Whereabouts?
“A. Well, police headquarters some of it, and some of it at the police barns on Fort street, east.
“Q. I will ask you to step down, Mr. Quandt, and tell us whether you recognize this case we will call Exhibit ‘A.’?
“A. Yes, I do recognize it.
“Q. What does it contain?
“A. Camel cigarettes. ■
“Q. Whose cigarettes are they?
“A. Mine.”
Witness then testified that he knew the cigarettes were his because he was told by the man who stole them. Upon cross-examination the witness testified:
“Q. Have you yourself any means .of identifying these cigarettes in this box, if this box contains cigarettes, as being your property?
“A. No, sir. There is no difference from lots of other Camels.
“Q. You yourself could not possibly identify the contents of this box, if it contains cigarettes, as being your cigarettes?
“A. No, sir.
“Q. The only reason why you say these are your cigarettes is because some man told you they were yours?
“A. Yes. Somebody did steal 36 boxes of cigarettes from my place of business. I received back 160,000 of them. The remainder of 200,000 are still out of my possession.”
During the taking of this testimony much controversy was interspersed by court and counsel, the contention of defendant’s counsel being that the testimony was not admissible, because he had no basis for his
“I move, if your honor please, that his testimony— that question and that answer wherein he was asked whether these were his cigarettes, and the answer that they were, be stricken out as based upon hearsay and being a conclusion.”
It will be noted that the precise inquiry made of the witness was whether he could identify exhibit “A” which was a case or box, and he replied he could. In reply to defendant’s counsel he frankly admitted he could not identify the cigarettes that were in the box because they were similar to other cigarettes of like brand. He might very well be able to identify the case or box which contained the cigarettes and yet be unable to identify the cigarettes for the reason that the cases or boxes had been in his own store, and he had seen them since they were stolen while in the possession of the officers. For this reason the motion to strike out was properly denied. Further complaint is made in this connection of the testimony of Quandt that he knew they were his cigarettes because the man who stole them told him they were. As no objection appears of record, nor is it included in the motion to strike out, we will not consider it. People v. Martin, 208 Mich. 109. We think the testimony bearing on the identity of the cigarettes taken as a whole was sufficient to support the finding of the jury.
2. It was the theory of the prosecution that J. Rubin was an alias of defendant, and that he received and indorsed the checks which were given him for the cigarettes -and which were made payable to J. Rubin. It was the claim of defendant that J. Rubin was an alias of Schneider, one of the parties indicted for stealing the cigarettes. Upon cross-examination defendant denied that the indorsements on the checks were
“Whenever in any suit or proceeding in any of the courts of this State, it shall be necessary or proper to prove the signature or the handwriting of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one admissible in evidence or connected with the case dr not: Provided, That if such paper is not one admissible in evidence for some other purpose, or connected with the case, it shall not be admissible in evidence for the purpose of comparison unless it was made before the controversy arose concerning which such suit or proceeding was brought.” 3 Comp. Laws 1915, § 12539.
Quite likely it would have been error to compel the witness, against objection, to make the signatures he did. (First National Bank v. Robert, 41 Mich. 709), but we see no occasion for holding it reversible error, when it was done voluntarily and without any objection upon his part, or upon the part of his counsel. But this does not dispose of the question. Defend
“A. Do I understand that the man that wrote Abraham Sturman on this exhibit ‘D’ wrote ‘J. Rubin’ also?
“Counsel for Defendant: Just a moment. ' I object to that, if the court please. That is not theques- “ tion he was asked.
“(Question read by reporter.)
“A. Exhibit T>’ is the paper written here by Mr. Sturman.
“Counsel for Defendant: That is not right. I did not understand the question that way, if the court please.
“The Court: Then your objection is withdraWn?
“Counsel for Defendant: Yes.”
This left the question to be answered without objection. Under these circumstances we must hold that by not interposing an objection his right under the statute to have the paper containing his signature excluded for the purpose of comparison was waived. This conclusion makes further construction of the statute unnecessary.
3. The further question is raised that the witness Hampel did not show himself qualified as an expert on handwriting. The witness testified that he had been working for the Detroit Savings Bank for five
We are of the opinion that a case was made for the jury and that the trial court was in no error in refusing a new trial on the ground of newly-discovered evidence.
The judgment of conviction is affirmed. .