People v. Eagger , 4 Mich. App. 449 ( 1966 )

4 Mich. App. 449 (1966) 145 N.W.2d 221

PEOPLE
v.
EAGGER.

Docket No. 500.

Michigan Court of Appeals.

Decided October 11, 1966.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel H. Olsen, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.

Michael J. Kelly, for defendant.

T.G. KAVANAGH, J.

Although the late Judge WATTS heard oral arguments on the above matter, he took no part in the decision in this case.

On October 14, 1964, the defendant was convicted by a jury in the recorder's court of the city of Detroit on two counts of an information charging breaking and entering a business place in the nighttime with intent to commit larceny^[1] and larceny in a building.^[2] He was sentenced to prison on the first count and sentence on the second count was suspended.

During the trial, the prosecution introduced the testimony of four police officers, the owner of the store which was allegedly broken into by the defendant, and Sandra Griggs, who was with the defendant when apprehended by the police. She was indorsed on the information and was called by the prosecution as a res gestae witness.

The testimony of Sandra Griggs at the trial differed from a prior signed statement which she had given to the police. The prosecutor introduced her prior statement into evidence for impeachment purposes. Defense counsel objected to its admission on the ground that a proper foundation was not laid. The court permitted a foundation to be laid and then admitted the statement. Defense counsel made no further objection relative to impeachment of the witness, nor did he later request the court to specifically instruct the jury regarding the impeachment material.

Defendant asserts that the trial court erred in failing to instruct the jury that the prior statement and testimony relating thereto was allowed solely for the purpose of impeachment and not as substantive evidence.

The sole purpose of impeachment is to vitiate a witness' credibility and evidence introduced for such purpose must be limited to that.

"The danger in any case is that not the sworn testimony given in court, but the unsworn extra-judicial statements made by a witness may be used to convict a respondent." People v. Lahnala (1916), 193 Mich. 144 at 162.

It is error for the trial court to refuse a request for instruction to the effect that an impeaching statement may be used only for impeachment and not as substantive evidence. People v. Nemeth (1932), 258 Mich. 682. Indeed it is not even necessary to request it. See People v. Durkee (1963), 369 Mich. 618 wherein the court said at page 627:

"The instruction did not caution the jury that Sharon Kaufman's testimony in respect to her statement given at the hospital could not be considered as substantive evidence, and it is not only possible but probable, that the jury considered the statement as substantive evidence of the guilt or innocence of the accused.

"Under this record we conclude that reversible error was committed."

Such is the case at bar. Sandra Griggs was the only witness offered by the prosecution to connect the defendant, Frank Eagger, Jr., directly with the alleged breaking and entering. The jury was allowed the unrestrained application of her prior statement positively identifying the defendant. No cautionary instruction on the use of this statement was given.

Appellee urges that the jury had sufficient information without the prior statement to find defendant guilty beyond a reasonable doubt.

We cannot say what the jury would have found without the prior statement, since we do not constitute a reviewing jury and do not hear cases anew upon the evidence. People v. Werner (1923), 225 Mich. 18, and People v. McKernan (1926), 236 Mich. 226.

In view of our holding on this point we do not discuss the other allegations of error.

Reversed and remanded for a new trial.

LESINSKI, C.J., concurred.

NOTES

[1] CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305).

[2] CL 1948, § 750.360 (Stat Ann 1954 Rev § 28.592).