People v. Bigge ( 1939 )

Defendant appeals from a conviction for embezzlement.

It is claimed that the following portion of the opening statement of the prosecutor constituted reversible error:

"On the 1st day of May, 1937, in Detroit where a conference was held with Mr. Bigge with one of his very close friends and a relative, the matter of his embezzlement was talked over at length by another witness who will testify in this case. They were going over various items of this embezzlement and the amount, and what Charles had done with the money, and this person, his brother-in-law in fact, said to this witness who will testify, 'What's the use of going over this matter again. Charles is guilty as hell.' "

When this statement was made, counsel for defendant objected to it "as being improper unless Charles Bigge was present." Upon this objection, the prosecutor stated: "I haven't finished. Charles Bigge could have said right there if it wasn't true. It was his duty to have said so."

No further statement of the grounds of objection was made. On the trial, and at a time when the jury was absent, the court asked the prosecutor what he intended to prove by a certain witness. In answer to this inquiry the prosecutor proceeded to examine the witness in question as to the alleged statement made by defendant's brother-in-law. The court then decided that such evidence should be excluded. All of this was in the absence of the jury, and upon the court's ruling, the jury was recalled and nothing further said about the matter in their presence.

After conviction, defendant made a motion for new trial, and for the first time raised the question that the above opening statement was prejudicial. The court stated that no request to charge the jury on the point was made, found that the statement was made in good faith, and denied the motion for a new trial. At the time the statement was made, no one considered it prejudicial. Counsel for defendant objected on the specific ground that it would be improper if defendant had not been present at the time the statement was alleged to have been made. Apparently it was considered proper under the theory of an admission by silence in which defendant's acquiescence might be inferred. See People v. Todaro, 256 Mich. 427; the objection, however, was directed to the proposition that the statement would be inadmissible if it later appeared that it was subject to exclusion as hearsay.

In People v. Prinz, 148 Mich. 307, it was said:

"It was conceded at the argument that no exception was taken to the rulings of the trial judge now complained of, and no requests to charge upon the questions which it is now claimed should have been covered. The general rule in criminal as well as civil cases is that this court will, on review, consider only such questions as were presented for the consideration of the trial court."

See, also, People v. Graney, 91 Mich. 646; People v.Richards, 150 Mich. 434.

In People v. Brott, 163 Mich. 150, it is said:

"We adhere to the general rule that questions will not be reviewed unless raised in the court below, and brought here in accordance with the general practice, for to hold otherwise would enable defendants to raise most any question without exception. There is much good sense in the strictest rule upon this subject, and certainly to extend it beyond the exception mentioned * * * would be to put a premium upon a practice of treating a point as inconsequential, or conceded, and thereafter asking a reversal, upon the ground that it has been overlooked, thus allowing a defendant to have an 'anchor to the windward' in case he shall fail of acquittal on the merits. If it be admitted that this court has this power, and on occasion will exercise it, in a capital and even in other cases, it should be done only when the record clearly shows that a manifest injustice has been done; but this should be held as in the nature of an act of grace, wherein the noncompliance of counsel with the rules of practice is overlooked, rather than a recognition of a defendant's right to disregard the rules and practice usually required to assure justice to the State in the prosecution of offenders."

In People v. Rosa, 268 Mich. 462, it is said:

"Prejudicial remarks of counsel may be cured by proper and timely instructions. People v. Lincourt, 221 Mich. 674; People v. Connors, 251 Mich. 99. However, this court has repeatedly stated that errors will not be considered on review in the absence of objection to the prejudicial remark or comment, and that it is the duty of opposing counsel to seek and obtain a ruling of the trial judge. People v. Goldberg, 248 Mich. 553."

With regard to the conduct of the prosecutor in attempting to prove similar acts as bearing upon the quo animo of defendant, as provided in 3 Comp. Laws 1929, § 17320 (Stat. Ann. § 28.1050), and the rulings of the court thereon, I am in accord with Mr. Justice WIEST that there was no error.

I do not see how the question of deprivation of a fair trial is presented in this case, where the conduct of the prosecutor was acquiesced in by defendant. 3 Comp. Laws 1929, § 17354 (Stat. Ann. § 28.1096), does not prevent an accused from having a fair trial. It is only where a fair trial has been had that the statute may be invoked. In such a case, it could not be held unconstitutional as denying a fair trial.

In Sunderland v. United States (C.C.A.), 19 Fed. (2d) 202, 216, a fair trial is defined as follows:

"The term 'fair trial' is often used, but not often defined. It is of broad scope. While we shall not undertake to give a formal definition of the term, yet it may not be amiss to mention, in part at least, its content. It means a trial conducted in all material things in substantial conformity to law. * * *

"It consists not only in an observance of the naked forms of law, but in a recognition and just appreciation of its principles * * * It means a trial before an impartial judge, an impartial jury, and in an atmosphere of judicial calm * * * Being impartial means being indifferent as between the parties * * * It means that the acts and language of the prosecuting attorney are subject to control; that his duty consists, not in securing conviction at all hazards, but in ascertaining the truth * * * It means that the defendant shall have a fair opportunity through his counsel to outline his defense to the jury. It means that the right of cross-examination shall be respected * * * It means that, while the judge may and should direct and control the proceedings, and may exercise his right to comment on the evidence, yet he may not extend his activities so far as to become in effect either an assisting prosecutor or a thirteenth juror * * * It means that, if evidence of good character of the defendant is introduced, an adequate instruction to the jury shall be given touching the probative value of such evidence."

In State v. Rush, 108 W. Va. 254 (150 S.E. 740), it was said:

"The accused was, of course, entitled to a fair trial. But the term 'fair trial' does not imply a perfect trial. A trial without prejudice to the accused is a fair one. And because a perfect trial is rarely, if ever possible, necessity and common sense have evoked the rule of 'harmless error,' as to error which does not prejudice."

The claim that the statement was prejudicial and resulted in reversible error is without merit. It was raised too late to save the question for review. No objection on the ground of prejudice was made on the trial before verdict; there was no motion for mistrial; and no requested charge on the matter complained of was proffered. The objection was not called to the attention of the court during the trial for the obvious reason that it was not considered prejudicial; and it now appears only as an afterthought. Convictions in criminal cases should not be rendered abortive by technicalities.

Judgment should be affirmed.

BUTZEL, C.J., did not sit.