People v. Kiely

On January 9, 1923, Stanley W. Smith was the owner of a Dodge sedan automobile bearing license number 57-306. About 9 o'clock in the evening he parked it on Madison avenue near the Capital Theatre in the city of Detroit, and with his wife and friends attended the theatre. About half-past 10 that evening William F. Andrews was on Grand River avenue in his automobile and about to start up when the Smith automobile occupied by two men collided with his machine. The two men got out of the Smith machine, engaged in some conversation with Andrews, and then fled. Andrews pursued, and one of them, Proskner, was caught and turned over to the police. The next day Smith recovered his car at the police station. In March following defendant was apprehended and identified by Andrews as the other occupant of the Smith car. Proskner was tried separately and convicted and sentenced. Defendant on this writ of error reviews the judgment of conviction rendered on his trial for a violation of Act No. 313, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 15430).

Mr. Andrews was called as a witness by the prosecution. He identified defendant as one of the occupants of the Smith car on the occasion of the collision and testified to his identification of him at police headquarters on March 23d. He was further interrogated as to a conversation with defendant a day or two thereafter when defendant visited him. This testimony tended to show that defendant was attempting to induce the witness not to give testimony against him and was corroborated by other testimony to which we shall presently refer. There were many objections to Mr. Andrews' testimony on this point and the court instructed the witness as follows:

"The witness will relate only that part of the conversation that has to do with his connection with the offense."

However, the witness in answer to a proper question by the assistant prosecuting attorney said:

"I told him I couldn't listen to him at all, that I had nothing to do or say about it; that I had identified him; therefore would have to go through with it and appear against him as a witness. He told me that he had been arrested, but never convicted, eleven different times."

Defendant then asked the court to declare a mistrial. His objection being based on the last sentence of the quoted answer. The court declined to declare a mistrial but struck out the testimony and instructed the jury to disregard it. Shortly after he fully went over the matter to the jury and in very positive language directed them to disregard the testimony and again in his general charge gave like instruction. There was no harmful error in this incident. The question is controlled byPeople v. Rozewicz, 228 Mich. 231, and authorities there cited.

The people produced Proskner as a witness. He gave testimony implicating defendant in the transaction. As we have stated he had already been convicted. Upon his cross-examination defendant's counsel went into the testimony given on his trial, the evident purpose being to show that he had been guilty of subornation of perjury. Finally the court fully informed the witness of his constitutional rights, and told him he need not answer questions incriminating or tending to incriminate himself. The witness exercised his constitutional right. Defendant's counsel then asked the following question:

"Is the reason for your refraining to answer the question because in your opinion the answer to the question might incriminate you?"

An objection by the prosecution to this question was sustained and error was assigned on this ruling. It might be sufficient answer to this assignment of error to say that it had already appeared that the refusal of the witness to answer the question was for this reason, but we think the question was an improper one. See People v. Maunausau60 Mich. 15; Bales v. Evans, 182 Mich. 383.

Defendant's counsel in his argument to the jury made a most vicious attack on the witness Andrews in an attempt to destroy the effect of his testimony. Replying to it, the assistant prosecuting attorney said:

"There is no ground for the presumption that Mr. Chawke has raised that if Kiely was the last man out, Andrews would have had no opportunity to see Kiely, as he tells you he saw him. I am dealing only with facts. I have had to build up this case piece by piece and those are the only things that remain on which I can argue. I have no testimony to tear down because I built it up."

Error is assigned on the last two sentences, and it is insisted that they called the attention of the jury to the fact that defendant had not taken the stand as a witness. A reading of the arguments of both counsel as they appear in this record is convincing that the language used was but a reply to the attack, and in some regards the unjustified attack, upon the testimony of the witness Andrews. It would require a stretch of imagination to make it applicable to anything else. The trial judge gave the request of defendant's counsel dealing with the failure of the defendant to testify. This assignment of error is without merit.

Finally it is insisted that there was error in the following instructions to the jury:

"I charge you that any statement or conduct of a person indicating a consciousness of guilt where at the time or thereafter he is charged with or suspected of the crime, is admissible as a circumstance against him on his trial. I charge you, therefore, that as bearing on the connection of this defendant with the crime charged, you may consider not only the identification of the defendant, Edward Kiely, testified to by the witness Andrews and the witness Proskner, but you may also consider the fact that this defendant, subsequent to his identification by the witness Andrews, visited his place of business and talked to said witness regarding the collision of the Dodge sedan in question with the automobile owned by witness Andrews at the corner of Broadway and Grand River avenue."

The court also charged the jury:

"Some evidence has been offered of statements made by the defendant after his arrest and while he was awaiting trial and I charge you in relation thereto that such statements are to be received with great caution, for besides the danger of misapprehension of witness, or the misuse of words, and failure of the party to express his own meaning and the infirmity of memory, it should be recollected that the mind of the prisoner himself, is often oppressed by the calamity of his situation, and that he is often influenced by motives of fear and hope to make statements."

We have already noted the fact that the testimony of Mr. Andrews tended to show that, after he had identified defendant, the defendant came to see him with a view of paying for the damage done and inducing Mr. Andrews not to appear as a witness. Mr. Proskner gave testimony tending to show that defendant proposed that method as an avenue of escape. While offers to bribe or to "settle" are not sufficient alone to establish guilt, they may be considered in connection with the other testimony in the case. People v. Pericino, 227 Mich. 440.

The defendant has had a fair trial and his conviction will be affirmed.

McDONALD, C.J., and CLARK, BIRD, SHARPE, MOORE, STEERE, and WIEST, JJ., concurred.