People v. Eamaus ( 1919 )

Bkooke, J.

Respondent was convicted of keeping and maintaining a house of ill-fame in the city of Kalamazoo. Though impleaded with another, his wife, he demanded and received a separate trial. He now reviews his conviction under exceptions before sentence. His counsel relies for reversal upon the following points:

(1) Error in denying motion for continuance.

(2) Errors in the admission and rejection of testimony.

(3) Error in the charge of the court.

1. It appears from the record that respondent was arraigned, waived examination, and the return was filed on June 4, 1918. On June 6 the information was filed. On the same day a motion for a continuance was made supported by the affidavit of respondent in which it is stated that one Hatte Mook is a material witness for respondent and that said respondent after a full statement of his case to his counsel is advised and believes that he cannot safely proceed to trial without the testimony of said Hatte Mook. The affidavit further discloses that said Hatte Mook lives near Lyons, Michigan, and is ill. Accompanying the application was a physician’s certificate in the following terms:

“Lyons, Mich., 6/6/1918.

“To Whom It May Concern:

“This is to certify that, in my opinion, owing to certain conditions of her heart, that it would be very imprudent for Mrs. Hatte Mook to undergo any examination in court of a legal nature as the least excitement would be liable to prove fatal to the said lady.

“Wm. R. Grant, M. D.,

“Lyons, Michigan.”

Respondent was placed on trial on the 17th day of June, 1918, at which time his counsel excepted to the refusal of the court to grant the application for a continuance to the September, 1918, term. Error assigned upon said ruling raises the first question for consideration. It is to be noted that the affidavit for continuance gives no intimation to the court as to what testimony Hatte Mook could give bearing upon the issue to be tried. In the case of People v. Anderson, 53 Mich. 60, it is stated:

“The affidavit for continuance shows that the respondent has. fully and fairly stated to his counsel what he expected to prove by John Morgan, and was advised that Morgan was a material and necessary witness, without whose testimony he could not safely proceed to trial.”

The court refused the continuance for two reasons:

“First, that the affidavit did not conform to the rule (Circuit Court Rule 55), in not stating what was expected to be proved by the witness.”

On review in this court it was said:

“On the whole we are not prepared to say this was a fatal error.”

In the case of People v. Foote, 93 Mich. 38, the fourth assignment of error was that the court erred in not delaying the trial to enable respondent to secure the attendance of two witnesses. In passing upon this assignment the court said:

“It was entirely within the discretion of the court to refuse a delay for the purpose of procuring witnesses, and we see no abuse of that discretion. When the request was made, the circuit judge and counsel for the people and the respondent retired to an adjoining room to see if they could arrange some disposition of the matter. What took place there does not appear upon this record. We have not, therefore, all the facts before us. The judge was possessed of all the facts, and was in a far better position than are we to judge of the propriety of a delay.”

The same question was considered in the case of People v. Burwell, 106 Mich. 27, where it is said:

“The application for a continuance was within the discretion of the circuit judge. The application did not state what respondent proposed to prove by the witnesses whose presence he desired. Several of them were produced and testified.”

The affidavit for continuance in the case at bar is subject to the same infirmity pointed out and criticized in the foregoing authorities. The matter being one primarily for the exercise of a sound discretion by the court and no abuse thereof having been made to appear, we are of opinion that the assignment of error based upon the action of the court is without merit.

2. We have carefully examined the assignments of error based upon the admission or exclusion of testimony and find no reversible error therein.

3. Error is assigned upon the following excerpt from the judge’s charge:

“'Considerable time was spent yesterday by counsel for the defense in addressing the jury in an appeal which, for the want of a better term, is commonly termed an appeal to sympathy, an appeal for sympathy, and you were asked repeatedly by counsel for respondent in the course of his remarks how you would like to have* your son convicted under the testimony in this case. That is not the question at all. You are not called upon to consider it. It would be entirely improper for you to consider how you would like to have your son convicted under the testimony in this case. It is entirely safe to assume that there is not one of you who would like to have your son convicted under the testimony in this case. It is not likely that any of you who are fathers would like to have your son convicted. You are not here for that purpose. It would be entirely improper for you, as jurors, to analyze and consider the evidence in this case in the light of such a proposition, in the light of any such an attitude or with any such frame of mind. You are here to consider the evidence that has been presented, whether or not under the evidence it appears beyond all reasonable doubt this man participated in the keeping of a bawdy house, a house of prostitution, a house of ill-repute. You should dispel as far from your minds as you can as to what you would like to happen to your sons, those of you who have sons, under like circumstances. That appeal can no more properly be made by counsel for the respondent than it can be by the prosecuting attorney. The respondent would have no right to ask you what you would like to happen to your sons in connection with any feature in this case. It would be error for the prosecutor to make such an argument, and the court would have to reprove and reprimand him if he undertook to do it. So what is improper for him is improper for the defense.”

The balance of the charge is not printed in the record. Counsel’s criticism of the excerpt quoted is that the same is argumentative and improper. He asserts that no objection was made to any part of his argument to the jury either by counsel for the people or by the court. He claims:

“If counsel made an improper argument it was the duty of the court to stop counsel so that the stenographer might take down the language used and give counsel the benefit of any exception he might wish to take and to inform and apprise this court of the kind of argument that was being indulged in.”

He further claims as .a matter of fact that no such argument as that criticized by the court was made by him. The record does not contain a report of the argument of counsel and only that portion of the judge’s charge complained of. Under the circumstances we must assume that the argument was made exactly as indicated by the charge. If made, no argument is needed to emphasize its impropriety.

We find no error and the conviction is affirmed.

Moore, Steere, Fellows, and Stone, JJ., concurred with Brooke, J.