147 Mich. 1 | Mich. | 1907
The respondent was, with his father, Levi Tubbs, and his uncle, Charles Tubbs, jointly informed against for the murder of John Boutts at the township of Kalamoin Eaton county on November 20, 1904. He demanded a separate trial, which was granted, and which resulted in a conviction of murder in the first degree on May 4, 1905.
Levi and Charles Tubbs are the owners of a farm in said township, through which, years before, had been laid out and constructed a county drain; the right of way for said drain 20 feet wide having been duly released by them. The Tubbs farm is on the north side of the highway, which runs east and west in front of it. The drain enters from the highway on the south line of the farm some distance west of the house, and runs across to the north line, making several angles in- its course. The water in the drain flows to the north. The deceased, John Boutts, had a contract with the county drain commissioner for cleaning out portions of this drain, includ
This was the first time respondent and deceased had any words about the ditch. Deceased worked on the ditch that day with his wife, and when they returned next morning respondent and Charles Tubbs were there and a dispute arose about some grass which grew in the bottom of the ditch and which was cut by Boutts in order todo the digging and was carried away by him. By the request of the drain commissioner, who desired the water to have an outlet, Boutts worked on the lower end of the drain that day, so nothing occurred between the parties. Boutts next worked on this drain Friday afternoon, November 18th, at the lower part, finishing up and shoveling out the bottom. Respondent on Saturday, November 19th, went to the village of Nashville and purchased a revolver, for the purpose, as he said, of shooting a dog. On the same day Levi Tubbs went-to Charlotte and saw drain commissioner Carr, telling him he would forbid putting dirt from the drain outside the right of way, and told him he would see that Boutts did not work there on Sun
The cause is here upon exceptions after judgment. Errors are assigned upon overruling a challenge to the array, upon portions of the charge of the court, the refusal to charge as requested, and the argument of the prosecutor to the jury. The challenge to the array made to the court was oral. Respondent’s attorney said:
“ Eor the purpose of saving the record, I desire to interpose a challenge to the array and will have the clerk sworn.”
The clerk was sworn and examined. The challenge was overruled and an exception taken. Respondent’s attorney said that, in order to make the challenge effective, it was suggested to him it should be in writing and filed, and asked permission to prepare and file it later and treat it as being filed now. The court said:
“I thought it had been filed by what you said. Let me see it when it is filed.”
A jury was selected and sworn, and the case proceeded to trial. Three days afterwards the challenge to the array was filed. The record does not show that it was called to the attention of the court, or that he ever saw it. It is well settled that a challenge to an array must be in writing. People v. Doe, 1 Mich. 451; Ryder v. People, 38 Mich. 269. No such challenge to the array as the practice requires was ever presented to or passed upon by the court.
Error is assigned upon the allowance of certain redirect examination of the witness Youngs, called by the people to show that respondent had purchased the revolver from him the day before the shooting. His testimony on the trial differed materially from that given for the people on the examination, and the court allowed the prosecutor to examine him with reference to such prior testimony. Prom the witness’ testimony on the trial it appeared that he had been subpoenaed by respondent. He had materially modified his former testimony, and it was proper to permit the prosecution to read to him such of his former testimony as was material, and examine him upon it. This was done by reading two of his former answers, which he admitted were true. People v. Case, 105 Mich. 92; People v. Gillespie, 111 Mich. 241.
Two witnesses, Rouse and Clemens, testified as to what occurred at respondent’s house about two hours after the homicide. Respondent at this time furnished the witnesses with cider. Mrs. Tubbs showed them through the house, which had been refinished and papered. They did not testify as to what she said. It is urged that it was error to allow testimony as to what she did. Respondent was present. He did not follow them through the rooms, but knew that they looked through the house. The testimony was properly admitted.
The question asked by the prosecutor of the county surveyor, who had been called to show the peaceable disposition of defendants when the drain was originally surveyed and laid out, was proper cross-examination, as tending to show that he had made statements to the contrary.
The error assigned upon certain cross-examination of Charles Tubbs is not meritorious. The questions answered were proper cross-examination and tended to impeach the witness. One question objected to was held by the court not proper, and was not answered. Propounding such
Several errors are assigned upon the statements of the prosecutor made in his argument in closing the case. The whole argument is not in the record, and none of the argument for the respondent appears. Many of the statements are claimed by the prosecutor to have been made in answer to attacks made by respondent’s counsel upon certain of the people’s witnesses, and the trial judge indicates that this was the fact. Ordinarily these matters must be left to the sound discretion of the trial court, who hears the entire arguments of counsel, and can better judge whether the language is justified by the arguments of the opposing counsel. Courts of last resort will interfere by granting a new trial only in a case where the attorney has clearly departed from the evidence and the line of legitimate argument, to the evident prejudice of the opposite party. People v. Conley, 106 Mich. 427. It was held not reversible error to call respondent “the lowest of dead beats.” People v. Winslow, 39 Mich. 505. So it was held not error for the prosecutor to say to the jury that a witness lied. Driscoll v. People, 47 Mich. 414. The court, speaking through Justice Campbell, said:
“As it was apparently within the proper range of the prosecution to insist before the jury that Fennell was a false witness, the matter became a question of good taste, and not of law.”
That language was certainly as objectionable as, in the case at bar, to call the story of a witness “a damnable yarn,” or to say that the respondent was as “vicious as a rattlesnake and active as a hornet.” Further language of the prosecutor relied upon as constituting reversible error, necessary to be considered, is his statement that, if affairs of this kind should go unrebuked and are justified by the verdict of a jury, each man would better protect himself, that they would better discharge officers, and buy ammunition for the purpose of self-protection. This was said in
Courts have seldom reversed convictions in criminal cases for the language of the prosecutor in denouncing the conduct of a respondent, or a witness, when such language is based upon the record. They frequently reverse cases where the prosecutor has thrown his own belief into the scale, or has based an argument on matters not appearing on the record, or used language clearly prejudicial. Courts will be very slow to reverse a case for the language of the prosecutor, which, in his judgment and that of the trial court, is based upon the evidence in the case. The language complained of was based upon the evidence and “became a question of good taste, and not of law.”
The exceptions to the charge of the court and the refusal to give certain requests presented by respondent may be considered in groups: .
(1) Those relating to the law of self-defense.
(2) Those relating to the evidence of previous good character.
(3) Those relating to the fact that deceased and his workmen were upon these premises on Sunday, and contrary to the Sunday statute prohibiting work, and were trespassers, who could be forcibly ejected.
(4) Those relating to trespassing beyond the right of way.
In a recent case, where the whole charge properly stated the law of self-defense, this court held it was not error to use the same expressions claimed in the case at bar to be erroneous. In that charge the trial judge said:
“ But he may act upon a reasonable belief arising from appearances which give him reasonable cause for believing that danger was actually imminent, although it may turn out that he was mistaken. His guilt or lack of it depends upon the circumstances as they appeared to him.”
The judge also charged in that case that if respondent -actually believed that the person killed “was about to do him great bodily harm, and had any reasonable ground for such belief,” etc. People v. Farrell, 146 Mich. 264.
Error is assigned upon the following words of the judge in his charge, being one clause of a sentence:
“And, unless such facts constituting such reasonable cause have been established by the defense in the case, you cannot acquit on the ground of self-defense.”
This exception, as well as the one just considered, must be determined in the light of the rule that a single sentence or a part of a sentence cannot be isolated, and, standing alone, made the subject of reversible error, if, upon the entire charge, it can fairly be said that the jury were not misled. Applying that rule to this case, we do not think there is any ground for saying that the jury understood that the burden of the proof of the respondent’s innocence was cast upon him. At the commencement of his instruction the learned trial judge clearly and emphatically instructed the jury that the respondent was presumed innocent until proven guilty; that no man could be convicted until proof was brought establishing his guilt; that the presumption of innocence attended him all through the case until overcome by evidence which should convince them beyond a reasonable doubt of guilt; and that such presumption applied to every
He then stated the theories of the prosecution and the defense, after which he instructed the jury as follows:
“If you find from the proofs in the case and have any reasonable doubt in your minds whether or not the respondent shot Boutts for the reason that he believed at the time he fired the shots that his father, Levi Tubbs, was in danger of death, or great bodily harm at the hands of John Boutts, and fired the shots in defense of his father, then you should acquit him, and return a verdict of not guilty.
“ The right to defend one’s self against danger not of his own seeking is a right which the law guarantees to all men; and the same right which exists to protect one’s self exists also for the protection of those dependent upon him, such as members of his family. In this' case defendant had the same right to protect his father that he would have had to protect himself in a like situation, though the danger was threatened to his father, and not to himself. If at the time the defendant shot the deceased, John Boutts, he had reasonable cause to apprehend on the part of the deceased a design to do his father, Levi Tubbs, great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger he shot, and at the time he did so he had reasonable cause to believe it necessary for him to shoot in the way he did, to protect his father from such apprehended danger, then and in that case the shooting was not felonious, but was justifiable, and you ought to acquit him upon the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actual or real, or that the danger should have been impending and immediately about to follow. All that is necessary is that the defendant had reasonable cause to believe and did believe these facts. But before you acquit on the ground of self-defense you ought to believe that defendant’s cause of apprehension for his father was reasonable. You are to determine from all the evidence whether facts constituting such reasonable cause have been established; and, unless such facts constituting such reasonable cause have been established by the defense in this ease, you cannot acquit on the ground of self-defense, but his actions*12 and conduct are to be judged from tbe circumstances as they appeared to him at the time. He had the right to act under the circumstances as they appeared to him at the time, and if from all the evidence in the case there exists in your minds a reasonable doubt whether the respondent did not in fact kill John Boutts in defense of his father, honestly believing his father’s life was in jeopardy, or that he was in danger of receiving serious bodily injury at the hands of Boutts, then it would be your duty to render a verdict of not guilty.”
It was clearly not the intention of the judge to say to the jury that the burden rested upon the respondent to prove his innocence. When the charge is read as a whole, it conclusively appears that the jury could not have been misled by the language complained of. It is evident from the entire charge that the burden was placed upon the people to establish the respondent’s guilt beyond a reasonable doubt. This is apparent from that part of the sentence immediately following that which is claimed as error, viz.:
“But his actions and conduct are tobe judged from the circumstances as they appeared to him at the time. He had the right to act under the circumstances as they appeared to him at the time, and if from all the evidence in the case there exists in your minds a reasonable doubt whether the respondent did not in fact kill John Boutts in defense of his father, honestly believing his father’s life was in jeopardy, or that he was in danger of receiving serious bodily injury at the hands of Boutts, then it would be your duty to render a verdict of not guilty.”
The law of self-defense was correctly stated by the court and the requests in relation thereto properly refused.
We do not find reversible error in the case. The conviction is affirmed.