*1 143 PEOPLE v. UNGUREAN
Opinion of the Court Testifying Impeachment—Prior Law —Defendant — 1. Criminal Sentence. Convictions —Prior may purpose prior shown for the conviction be A defendant’s however, prior sen- testing credibility; his a defendant’s may be shown. tence Length of Sen- Prior Sentence — Criminal Law —Defendant’s 2. Admissibility—Reversible Error. tence — of a defend- a criminal trial The introduction prior error. ant’s sentence reversible Admissibility. Offenses — Criminal Law —Evidence—Other 3. offenses, general rule, is not as a Evidence of other distinct though same admissible the other offenses are even charged. hind as one of offense by Comments— Law —Prior Sentence —Prosecutor’s 4. Criminal Testifying. Defendant prosecutor’s showing does not sub- A sentence defendant’s stantially prejudice and does not constitute and thus error where the takes the stand reversible defendant subjects jury, credibility impeachment, know- his because a ing conviction, justifiably presume could defendant’s accordingly. punished has been Law —Evidence—Other Offenses. 5. Criminal uttering and trial Prosecutor’s reference forged publishing forged three other checks check to subject not constitute error where the the other checks brought up by counsel. first [5] [1-4] 58 Am 58 Am Jur, Jur, References Witnesses Witnesses for Points §§ §§ 788, 734, 746, 789. in Headnotes 747-750. op Opinion the Court from Ronald M. Calhoun, Ryan, Sub- Appeal 11, 1971, Rapids. Division at Grand mitted 3 June No. Decided (Docket 9037.) 23, July *2 uttering convicted of and Ungurean Florian appeals. check. Defendant publishing forged and for trial. remanded new Reversed Kelley, Robert A. Frank J. General, Attorney M. Derengoski, Jereck, John General, Solicitor Petersen, Noel G. and As- Prosecuting Attorney, for the Attorney, people. sistant Prosecuting Greene, Richard T. for on appeal. Fitzgerald J., Before: R. B. P. and and Burns, H. JJ. Gillis, R. B. convicted P. J. Defendant was Burns, forged and check. MCLA uttering publishing Ann 1962 (Stat 28.446). 750.249 Rev § § defendant claims four appeal error, On points of which will be only two discussed.
1. Defendant it was error for the prosecu- claims prison tion to ask him if had been sentenced to to 5 for a similar offense. years 1-1/2 Defendant for the prosecu- 2. claims it was error other questions tion to three pertaining which were into evidence. checks not introduced v. Nelson White (1970), 26 Mich App with issue intro- 35, this Court when faced into evidence sentence time sentence and ducing ruled: that con- prior
“While we adhere the rule must we are credibility, victions admissible testing no reason include prior see rule to enlarge * * * sentences. by introduction “The was reversible error.” (pp 39, 40) sentence question and the inferences
The prosecutor’s Nelson can be drawn therefrom according White have influenced the case, “may jury denied the constitutional guarantee of a fair and trial”. impartial rule
As a evidence of general other distinct offenses not admissible even are though they same kind of offense as the one charged. People v. Schweitzer 23 Mich 301; People v. Askar 95; People v. Heiss App (1971)
The claimed people trial, at and the trial judge sustained their claim, the defense opened the door questions such by asking Detective Kennedy questions cross-examination about *3 other three checks.
The defense Detective Kennedy questions concerning the- three checks in People but as stated v. Eddington 23 Mich (1970), 231: App 210,
“A slight opening door by should not permit prosecution it swing totally ajar.”
As the case will be new remanded for a trial it is suggested that both people and the defendant refrain from questions the three checks concerning not introduced into evidence.
Reversed and remanded new trial. J., concurred.
Fitzgerald, H. J. {dissenting). Despite holding in People v. Nelson White App 35, (1970), that introduction of that 35 Mich
146 143 I error, sentence was reversible am con- not justice that a vinced occurred in miscarriage (Stat at bar. See MCLA 769.26 § case Ann 1954 Rev 28.1096). § in Clemens
Chief Justice writing Cooley, v. Conrad 170, Mich held that: 174, of a
“The right inquire witness, cross- has whether been examination, he indicted and criminal regard convicted a we as settled offense, case Wilbur v. Flood in this State by [1867], It is that in that true case the question was, whether the witness had been in State confined prison; convicted; not whether he been con- but in prison State a presupposes conviction finement law, by authority and justify inquiry not the and other would be to techni- only uphold a cal rule.” (Emphasis added.) Clemens, and its predecessor, Wilbur v.
Although Flood 40, are I over years old, fail juries see how juries then are today unable to if rationally that a defendant presume has been shown to been have convicted of crime has punished been I accordingly. perceive no substantial prejudice the mention of de- fendant’s prior prison sentence. White, with supra,
My disagreement
v.
White,
goes
deeper.
sanguine
reliance
Kotek
placed on the
passage
following
(1943),
“Defendant trial court erred *4 referring to his As the previous prison sentence. record indicates that such reference was made not in the presence of the it would not constitute jury, reversible error.”
In Koteh, not testify; did he was subject be there would cross-examination, hence People Ungtjrean v. prior prison any his sen reference to no basis credibility the where criminal conviction or tence my pnt in not first issue. defendant was entirely a opinion, where is reversed situation the credibility puts testify and his chooses defendant People v. Russell See line. on the People 213; McCrea App v. 654; Lloyd (1967), v. inapposite despite Kotek in use of Yet, supra, to account for the and its failure White, v. holdings supra, Flood, in Wilbur v. Clemens supra, majority fol- here content to is Conrad, law make it reversible would a rule which low justi- jury they what would to know error for presume. agree. fiably I cannot prosecutor’s agree refer- I also cannot error. three other checks constituted ence during these first reference to items occurred The arresting cross-examination of counsel’s he statement officer relative given merely a a him third check indorsed person: him inside you he met Did tell whether
“Q. the restaurant or outside? car, in his written “A. He said the check was way he was, car is the individual’s
whoever the indicated it.
# # [*] was for “Q. I understand that check And amount $66? Yes,
“A. sir. you asked “Q. check that And this the same about, $66? “A. Yes, sir. you specify “Q. $66 to him And $66—the check one for rather than the $25Í*
* amount On check occasion defendant received
“A. Yes. you knowledge no time “Q. at that But the check? had $25 up picked I from “A. I four checks had the may I in amount so have asked one the bank, $25 particularly however I was check, him about the $25 in the is interested one because that $66 charge one the was based on. person any on “Q. Did name a Mr. you other checks asked him about? these they payable all Yes, “A. were Florian Mr. Ungurean. you your “Q. All four of these checks had in possession payments were to the defendant? Security “A. Four of them from the National they May were all similar to Bank— 21st, only charged however the one that he was with the amount of $66. knowledge
“Q. You have that relative to the other checks, is correct? my possession, I yes.”
“A. have the other in three my opinion, explored defense counsel had pur- matter of the three other checks with sufficient pose prosecutor to allow the if they were also indorsed which he him, denied, explain appeared payee and to how his name as again as an indorser the back of the checks, Contrary implication could which he not. majority opinion, pursued, the matter was not prosecutor attempt nor to introduce the proposed exhibits into evidence over defendant’s signature. failure to authenticate the Since brought initially counsel existence of out the prosecutor’s attempt I no checks, find error to make them relevant.
I vote affirm. $25 from complaining payment witness as sale of used Presumably, television. this the same item.