People v. Prevost ( 1922 )

Bird, J.

Defendant was tried and convicted in the Macomb circuit court for the murder of J.. Stanley Brown. The testimony'discloses that defendant and J. Stanley Brown were both residents of Mt. Clemens and both were about 25 years of age. Brown was well to do and had no employment. Defendant was poor and was employed making deliveries for the Adams Express Company. Brown’s wife and defendant were first cousins. Defendant and Brown were much in each other’s company. They.were frequently seen about town together. They occasionally motored together in Brown’s car. They often dined together, and for several weeks before the murder they occupied the same room at the Edison hotel. They appeared to be the best of friends. Brown was founds dead in his sedan on the morning of December 24, 1919, about 3 miles west of the city of Mt. Clemens. Four bullets had entered his head from the rear. Following this, considerable time was consumed by the police authorities in making investigations. Finally a John Doe proceeding was instituted and considerable testimony taken. This proceeding developed facts which pointed to defendant as the guilty party. He was arrested and on examination was held for trial and later convicted.

1. Serious complaint is made of the use which the prosecutor made of the testimony taken at the John Doe proceeding in the examination of his witnesses. The testimony at the John Doe proceeding was taken stenographically and the prosecutor was in possession of a copy thereof. This testimony was' not used as substantive evidence but was used by the prosecutor to refresh the recollection of hostile or unwilling witnesses. Several of the people’s witnesses, including members of defendant’s family, also friends of defendant, had grown very forgetful since they testified in the John Doe proceeding, and the prosecutor used the John Doe testimony to refresh their recollection. The use made of it was competent for this purpose. People v. O'Neill, 107 Mich. 556; People v. Palmer, 105 Mich. 568. See, also, 8 R. C. L. p. 86.

2. Another question is raised in this connection. Defendant’s counsel applied for permission to see and have the use of the testimony during the examination of the witnesses. The trial court refused to grant the permission during the examination of the witnesses, but later on an order was made granting defendant’s counsel the right to the possession of the same. The prosecutor offered to permit defendant’s counsel to look over his shoulder and inspect the testimony while he was examining the witnesses, but they refused to avail themselves of this offer. Act No. 196 of the Public Acts of 1917, which authorizes the John Doe proceedings, does not provide that the testimony shall be taken stenographically, nor does it provide that minutes of the testimony shall be taken or filed. The John Doe proceeding was in no sense an examination of defendant nor was it a trial. Under these circumstances we do not know under what theory defendant could, as a matter of right, demand inspection of the testimony. The case of State v. Rhoads, 81 Ohio St. 397 (91 N. E. 186, 27 L. R. A. [N. S.] 558, 18 Ann. Cas. 415), denies defendant was entitled to inspect it,, but we need not further discuss this question, as the prosecutor’s offer to permit them to examine the testimony over his shoulder, and the court’s subsequent, order that it be turned over to them, renders it unnecessary. As long as counsel had the benefit of the testimony before the trial closed they are in no position to complain of the court’s ruling that they should not have it at a particular time.

3. It appeared during the taking of the testimony of the prosecution on the trial that defendant stood on his privilege and did not testify in the John Doe proceeding, nor on his examination, after the arrest, nor at the inquest. Counsel claim this was an error under 3 Comp. Laws 1915, § 12552. The material part of this statute is:

“Provided, however, That a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

Much time has been devoted to this question and many cases cited, but we are not impressed with the importance of the question, because of the fact that defendant took the stand and testified on the trial in his own behalf. When he did this he waived any benefit which he may have been entitled to under the statute, and was then subject to precisely the same cross-examination as any other witness. People v. Howard, 73 Mich. 10; People v. Gray, 135 Mich. 542; People v. Parmelee, 112 Mich. 296; People v. Escarius, 124 Mich. 623 ; People v. Higgins, 127 Mich. 291; People v. Bryan, 170 Mich. 683; People v. Danenberg, 176 Mich. 339; People v. Kimbrough, 193 Mich. 330.

Upon this question Underhill on Criminal Evidence (2d Ed.), § 68, says:

“The exemption from unfavorable comment is applicable only when the accused wholly refrains from -testifying’. If he voluntarily goes upon the stand, he waives this exemption, and the State may comment ¿upon his testimony as fully as upon that of any other witness, and may call attention to his silence and deaneanor while there, or at the preliminary examination, to his refusal to answer incriminating questions; or to deny prominent and damaging facts of which he must have some personal knowledge,” citing Russell v. State, 77 Neb. 519 (110 N. W. 380, 15 Ann. Cas. 222); Comstock v. State, 14 Neb. 205 (15 N. W. 355) ; Solander v. People, 2 Colo. 48; State v. Anderson, 89 Mo. 312 (1 S. W. 135) ; Cotton v. State, 87 Ala. 103 (6 South. 372); Lee v. State, 56 Ark. 4 (19 S. W. 16) ; State v. Walker, 98 Mo. 95 (9 S. W. 646, 11 S. W. 1133) ; State v. Tatman, 59 Iowa, 471 (13 N. W. 632) ; State v. Ober, 52 N. H. 459 (13 Am. Rep. 88) ; Brashears v. State, 58 Md. 563; Toops v. State, 92 Ind. 13; Stover v. People, 56 N. Y. 315; Commonwealth v. Mullen, 97 Mass. 545; Commonwealth v. McConnell, 162 Mass. 499 (39 N. E. 107) ; Heldt v. State, 20 Neb. 492 (30 N. W. 626, 57 Am. Rep. 835) ; State v. Ulsemer, 24 Wash. 657 (64 Pac. 800) ; Taylor v. Commonwealth, 17 Ky. Law Rep. 1214 (34 S. W. 227).

In the case last cited it was said:

“It is also objected that appellant was asked why he did not testify upon the examining trial, and it is claimed that this was in violation of section 223 of the Criminal Code providing that a defendant’s failure to testify ‘shall not be commented upon or be allowed to create any presumption against him.’ We think this provision is restricted to the trial and tribunal in which the failure to testify occurs, and that when. he takes the stand as a,witness he may be subjected to cross-examination touching his credibility as any other witness.”

Although there are some cases in Texas and Mississippi holding otherwise, we think this is a reasonable construction of the statute and the use to be made of it. The statute was passed for those who do not care to become witnesses in their own behalf and not for those who do. When a defendant testifies in his own behalf this statute has no application; it is the same as though the statute had never been passed. The idea behind the statute was to prevent a presumption of guilt being created by reason of the fact that defendant did not testify. If there were any such presumption in the minds of the jurors in this case before defendant offered himself as a witness the moment he did so the presumption would at once be dissipated and the fact that he had refused to give testimony on the preliminary examination would be of no consequence. To say to the prosecutor in one breath that when defendant takes the stand he may cross-examine him the same as any other witness; that he may cross-examine him with reference to every conceivable material thing, and then in the next breath say to bim if he asks the defendant whether he was a witness at the preliminary hearing it is a violation of the statute and reversible error is. to say the least, not very consistent. We are in accord with the construction suggested by Taylor v. Commonwealth, supra, and therefore conclude that the trial court was in no error when he instructed the jury that defendant had, by becoming a witness, waived the benefit of the statute.

4. Complaint is made that the prosecutor was permitted to develop on the trial the fact that Mrs. Brown, the wife of deceased, claimed her constitutional privilege and refused to testify at the John Doe proceeding. This objection is based on the fact that Mrs. Brown was, according to the theory of the prosecution, the motive for the murder. Upon the cross-examination of Dove Prevost, a brother of defendant, he was asked:

“Q. At the time they were sworn, did you see Mr. John Lungerhausen and Mr. Weeks and hear them state and instruct your brother, Lloyd Prevost, not to make any answers to any questions?

“Mr. McNamara: The same objection, your honor. # * *

“Q. You heard them tell him not to answer any questions, did you not?

“A. Yes, and I also heard Mr. Johns and Mr. VanDuyke tell Mrs. Brown not to.

“Q. To answer no questions, you heard that, too?

“A. Yes, sir.”

It will be observed that the witness answered the question of the prosecutor and volunteered the same answer as to Mrs. Brown. This was not responsive to the prosecutor’s question, but defendant’s counsel made no objection to the answer nor did they move to strike it out. Failing to do this they cannot now complain. Kent Furniture Manfg. Co. v. Ransom, 46 Mich. 416. But even if it could be said that the answer was responsive to the question I do not think it was error. Mrs. Brown was not a witness, neither was she on trial, and, therefore, she was not entitled to the protection of the statute. Counsel call our attention to People v. Hall, 48 Mich. 482 (42 Am. Rep. 477), in support of their contention. That case does not appear to us to be in point. The error in that case was the refusal of the court to instruct the jury that the silence of the witness claiming the privilege could not be taken against the defendant on trial. We do not understand there was any similar request made on this trial.

5. Millie Jelsone was an important witness. She ran the hotel where defendant and deceased roomed. Soon after the murder, upon being questioned by the officers, she stated to them that defendant came in and went to his room about 9:30 p. m. She continued to tell this story to the officers and to the courts. Later she changed her story and testified at the trial that defendant came home at 2 o’clock in the morning and requested her to say to any one who asked that he retired to his room at 9:30 p. m. Upon her cross-examination it was developed that she was at the prosecutor’s office in Detroit at the time she changed her story. The prosecutor then, upon redirect-examination, examined her from the statement made in his office which was taken by the court reporter. . The statement covered conversations between Mrs. Jelsone and the prosecutor, and also statements by a Mr. Balone, who brought the witness to the prosecutor’s office. Objection was taken to the conversations as being ex parte and hearsay.

Mrs. Jelsone completely reversed her testimony on an important point in the case. When this appeared, the average juror would be curious to know how and when and under what circumstances she changed her version of the affair. It was, therefore, competent to place before the jury all of her conflicting stories and the attendant circumstances under which they were made. When it appeared that the witness for the first time told a different story in the office of the prosecutor, it was competent to lay before the jury how she came to go to the prosecutor’s office, what was said to her and by whom said, and what she said bearing on the change in her testimony. It was only by showing these things and showing the inducements or influences, sinister or otherwise, by which she was led to make the change, that the jury would have a fair basis for determining whether she was to be believed at all, and, if so, which of her stories was entitled to credit. The trial court submitted to the jury the conflicting stories which the witness had told, and advised them, as follows:

“I want it understood that I am not permitting this as substantive proof, but simply for the purpose of enabling the jury to place the proper credit upon the testimony of this witness.”

The course pursued by the trial court was in fairness to both sides of the controversy and enabled the jury to determine which, if either, of her stories was the true one. People v. Davis, 217 Mich. 661.

6. During the time defendant was being cross-examined the court took a recess. His counsel attempted to confer with him during the recess, but were prevented. This is assigned as error. Later, when counsel complained to the court that they had been prevented from talking with the defendant, the court said:

“The record may show that the court made the same order in reference to this witness that he made at the request of the defendant as to some other witnesses in the case, some other important witnesses; until the examination of the witness was completed, that no conversation should be held except in so far as the attorneys were concerned. There was no order prohibiting the attorneys from seeing Mr. Prevost.”

It appears from the statement of the court and other parts of the record that a general order was made early in the trial at defendant’s suggestion prohibiting the talking with witnesses while they were being cross-examined. The regulation was one which the court had the right to impose and was a reasonable one, and applied to defendant himself while he was being cross-examined.

7. Attorneys for defendant offered a record of conviction of the witness Jelsone in the State of Pennsylvania for keeping a house of ill-fame. The court, at the time, refused to receive it until the Pennsylvania statutes were produced. Later these were produced and the following colloquy took place:

“The Court: Well, in order that there may be no question about it, I think I will allow it to be received so that the jury may use it for whatever it is worth.

“Mr. Groesbeek: I would like to be heard on certain parts of that before it is read.

“The Court: Very well, we can read it in the morning.

“Mr. Groesbeek: I think there are certain parts of it which are absolutely inadmissible.

“Mr. Nunneley: It is all inadmissible under the decisions of this State.

“The Court: We will take it up some time between now and tomorrow morning. The jury may retire and the audience remain seated.”

After the jury retired the certificate of conviction was read into the record, but was not afterwards read to the jury. The prosecutor now makes the point that it was defendant’s fault that it was not read. We cannot agree with him. Defendant’s counsel offered the exhibit and the trial court postponed thé time for reading it. Under our holdings we think that this was equivalent to a rejection of-the certificate so far as affects defendant’s right of review. Young v. Railway Co., 56 Mich. 430; Corning v. Woodin, 46 Mich. 44. We are of the opinion, however, that it was not reversible error, as there were two other exhibits read to the jury tending to establish the same thing.

8. Complaint is made of the conduct of one of the attorneys for the people during the direct-examination of defendant. He was testifying as to the troubles Mr. and Mrs. Brown were having and stated that after Mr. Brown caught his wife going out with Wild he did not associate with her for a time:

“Q. What was the talk between you and Brown on that subject?

“A. Mr. Brown came to me.

“Q. Who did?

“A. Mr. Brown, and talked to me for several evenings down at his home alone, and wanted to know my opinion of the whole thing, whether it was her fault or his, and I told him I did not know, and he said ‘Do you think I have been a little hasty on the proposition/ and I says ‘Maybe you have, and all people have trouble/ and he said, ‘Well you don’t see much of it in the paper/ and I says, ‘No, you don’t, but when you come to the facts of the thing, they do/ Mr. Nunneley (referring to one of the prosecutors) has had trouble the same as Mr. Brown has.

“Mr. Nunneley: What is that?

“A. Yes, you have.

“Mr. Nunneley: Well, if the court please, what kind of a business is this? I do not know anything about that; what kind of dirt is this? This is the second time these people have come in here and attempted to throw dirt at me, and this is something that absolutely has nothing to do with this, and there was no such thing ever happened, and this man is an absolute liar when he says it. I think I am justified in making that statement; he is flat lying.

“The Court: Well, that may be stricken out. It has no place here.”

Soon afterward, while prosecutor Nunneley was still smarting under the thrust made at him, the following took place. Defendant was testifying as to Brown’s habit of taking chloroform, and he stated that Brown’s mother died a victim of that habit:

“Q. Did you know that fact?

“A. I did.

“Q. His mother died from using chloroform that way?

“A. She did.

“Mr. Groesbeck: He was present, I presume, your honor ?

“Mr. Hosner: Just a minute. Are you cross-examining the witness?

“The Court: Proceed with the questions.

“Mr. Nunneley: Obviously lying again; you have not heard all his lies.

• “Mr. Hosner: I think that is a very brilliant remark. * * *

“Mr. Weeks: Now, we object to it and take exception to it as absolutely improper.

“The Court: The jury will understand that they are not to try the case from what the lawyers say, but from what the witnesses say.

“Mr. Weeks: I never knew counsel to indulge in such a gross impropriety.

“Mr. Hosner: Well, your honor, we—

“The Court: The jury may take a rest and the attorneys can go out in the alley if they want to scrap.”

The misconduct of counsel Nunneley complained of was the direct result of a nasty thrust made at him by defendant without provocation with reference to the chastity of his wife. The prosecutor is expected in the trial of criminal cases to observe the rules of decorum and to bear the many irritable and disagreeable things that come in his way without retort or comment. We realize, however, that there is a limit to the patience of a prosecutor. It was the most natural thing in the world that Nunneley should have resented the attack on his wife just as he did do, and if any ill effects resulted from it in the minds of the jurors the defendant has the satisfaction of knowing that no one was to blame for the outbreak but himself. A defendant cannot go out of his way to make an unwarranted attack on the chastity of the prosecutor’s wife and then complain because the husband denies and resents the imputation in vigorous language. Muncie Wheel & Jobbing Co. v. Finch, 150 Mich. 274.

The remaining assignments will not be considered as we think they are without merit. The case is. singularly free from serious errors for one that was. so protracted and so vigorously tried by both parties..

The judgment of conviction is affirmed.

Fellows, C. J., and Wiest, McDonald, Sharpe, and. Steere, JJ., concurred with Bird, J.