People v. Licavoli , 256 Mich. 229 ( 1931 )

On the afternoon of July 14, 1930, Henry Typancey was sitting in his automobile parked on Field avenue, near Jefferson, in Detroit, when a man approached, shot and killed him. Defendant was charged with the murder, tried, convicted, and sentenced. He has appealed.

1. The complaint was made by a peace officer. After examination had been had and returned and after the jury had been sworn, defendant for the first time sought to challenge the sufficiency of the complaint by showing that it, although made positively, was in fact made upon information and belief. The objection came too late. See People v. Hare, 57 Mich. 505;People v. Dowd, 44 Mich. 488.

2. Motion to quash on the ground that the examination showed no probable cause for charging defendant with the offense committed was made and properly denied. The evidence at the examination was that Typancey had been shot and killed, and there was testimony of an eyewitness that defendant did the shooting. Clearly, this is sufficient.

3. After the jury had been accepted by both sides but before final acceptance, as it later proved, certain pistols and cartridges (and other exhibits) to be used in the case were taken by officers from a package and placed on a table in the courtroom. Defendant moved for mistrial for this reason and complains of denial of his motion. The pistols and cartridges were later received in evidence without objection, and, therefore, we see no prejudice in this incident.

4. The prosecuting attorney's opening statement, which was brief and in mere outline, was that defendant himself had done the shooting. There was some testimony that defendant was an accessory acting with another in committing the crime. There was also testimony of other witnesses that defendant himself did the shooting. The prosecuting attorney argued for conviction on either theory of the evidence, and the case was submitted on both theories. If defendant aided and abetted in committing this crime he would, nevertheless, be a principal. 3 Comp. Laws 1929, § 17253; People v. Collins, 216 Mich. 541.

Defendant's complaint is not of the instructions of the court in this regard, but of the prosecuting attorney's departing from his opening statement. This would not be error, unless, perhaps, defendant was thereby misled to his prejudice. The testimony tending to characterize defendant as an accessory came in without objection, and, being in, could be used. Moreover, defendant offered no evidence in his behalf. It does not appear that defendant was misled to his prejudice, hence, the departure complained of is not reversible error.

5. A case was made for the jury, and, although the testimony is sharply conflicting, chiefly as to identity of the murderer, we must conclude from a review of all the evidence, as did the trial judge, that the verdict is not against the great weight of the evidence.

6. After the jury had been out for many hours, they were called into court and asked by the judge if they had agreed upon a verdict. They replied that they had not agreed upon the facts. The court admonished them relative to their duty as jurors and directed them to continue their deliberations. This is urged as coercion. In view or our holding in People v.Digione, 250 Mich. 206, where the jury was similarly admonished under like circumstances, we must hold the remarks not coercive.

7. We find no prejudicial error in the closing argument of the prosecuting attorney, and the matter calls for no discussion.

Affirmed.

BUTZEL. C.J., and WIEST, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.