People v. Barker

McAllister, J.

I am unable to concur in the view that there was reversible error on the trial of this case. Complaint is made that the trial court improperly restricted defendant’s counsel in his cross-examination of James F. Payne, a witness from the scientific laboratory of the detective bureau of the Detroit police department. Payne testified that the hole in the back of the dress was the point of entry of the bullet and that the hole in the front was the point of exit. He further testified that the condition of the dress was different at the time of the trial from what it was when he had examined it some days after the shooting. On the question o.f bloodstains on the dress, he testified that he did not know, and could not know, whether the stains on the dress were bloodstains, because he had not submitted the stains to a chemical examination.

Defense counsel’s persistent questions were concerned with Payne’s knowledge of whether the stains were of blood, and with requests to the witness to point out bloodstains to the jury. Confusion was introduced by counsel’s reference to the stains as bloodstains and inquiries as to whether the witness had seen such bloodstains. The answer of the witness was that there was less blood at the point of entrance than at the point of exit; but he immediately followed this statement by the further answer that he did not know that the marks were bloodstains. In view of the repeated and definite statements of the witness that he did not know whether such stains were bloodstains, the continuance of the examination of the witness'along such lines was bound to result in repetitious explanations by the witness and confusion to the jury. We find no error in the statement made by the court clearing up the question from the morass of such interrogations, objections, and colloquies, when the trial judge said:

“The dress is an exhibit. The jury may look it over if they desire to, for their own information. It is an exhibit and I think it is clear on the record now which hole this witness says the bullet went in and which hole the witness says it went out, and any time that the jury here are confused on it, I will see that they get the information.”

With regard to the alleged error of the court in preventing the defense from impeaching the witness Payne by his previous testimony on the preliminary examination, we find no reversible error. The testimony sought to be used for purposes of impeachment did not indicate that the witness had testified to the contrary on the trial; and although there might be implications that his memory was poor with regard to his testimony on the examination, there was nothing therein to contradict or impeach his testimony on the trial of the case. In view of the circumstances of the case, as we shall hereafter point out, the question was unimportant;' and the statement of defendant’s counsel that he would be unable to cross-examine the witness if the prosecution was going to take the position that the dress was not in the same condition at the time of the trial as it was at the time of the examination appears to justify the court in its rulings with regard to the matters complained of, for there was no question that it was the contention of the prosecutor and the claim of the witness that there had been a change in the condition of the dress.

But the important fact, as bearing upon the complaint of defendant with regard to the foregoing, was the absence of any proof of self-defense. If defendant did not kill in self-defense, it was unimportant where the stains were on the dress, or whether they were bloodstains, or whether deceased was shot in the front or back of the leg.

In the statement which defendant made to the prosecuting attorney at the time of her arrest, which was introduced in evidence on the trial, and which counsel for defendant insists was the truth, it appears that the following questions were asked by the prosecutor and answered by the defendant:

“ Q. After you had walked down this path, how far had you gone before anything else happened?

“A. Well, I slipped, or cut through the crust of ice, and my shoe got caught, and Mrs. Cummings went on ahead of me, and when we got just to the other side, why, she turned around, and let me go ahead of her, and at thát time we were just at the— going up over the top of the hill, on the other side, to where — of the ravine, and she grabbed my leg, and pulled me down off of the ravine, and she had this gun. She pointed it at me, and said that we were all through, we might as well recognize we were all through, that she just couldn’t cover up her checks any longer, and the thing for us to do was to go out, and there was quite a hit of conversation, and I hit the gun that she had, over to one side, and it went on the snow, and we both rumpus ed, tried to get the gun, and that is the way the thing happened.

“Q. Well, you say there was quite a lot of conversation. Just try to tell me as near as you can, just all the conversation you had before the gun, you say, went out of her hands.

“A. Well, I screamed and yelled and yelled for help, as loud as I could yell, and she tried to put her hands over my mouth, keep me from yelling. I was on the snow at that time.

“Q. You mean you were lying down, in place of standing?

“A. Yes; that is when she pulled my leg.

“Q. And you say she tried to put her hand over your mouth?

“A. Yes, she did.

“ Q. Which hand ?

“A. Oh, I don’t know which hand.

“Q. Where was the gun then?

“A. Well, we were battling for it. * * *

“Q. Now, you say that you were down on the ground, when you were screaming, and that Mrs. Cummings was trying to put her hand over your mouth, is that right?

“A. That is right.

“Q. How far were you from the gun then?

“A. I don’t know. "We were battling. She had— we were battling back and forth there on the ground for quite some time, and I was yelling at the top of my voice. * * *

“Q. Well, you were battling in the snow there, to see which one could get the gun; then what happened?

“A. And then I pulled myself up on the bank, and started to cross the country to the nearest farm house.

“Q. Well, didn’t you get a hold of the gun first?

“A. I don’t know what happened.

“Q. You don’t know?

“A. I just don’t know. I just battled, and I was just like insane. I didn’t know what in the world was the matter.

“Q. You don’t know whether you got the gun or not?

“A. No, I don’t.

“Q. You don’t remember whether you fired any shots out of it?

“A. No, I do not.

“Q. Well, after you were battling there in the snow, and you started to go away, where was Mrs. Cummings then?

“A. I don’t know. She was laying in the snow. * # *

“Q. Well, you heard the gun go off, didn’t you?

“A. Oh, I think I did. I don’t know what all happened. * # *

“Q. And Mrs. Barker, you killed Mrs. Cummings, didn’t you?

“A. Not to my knowledge.

“Q. .Isn’t it a fact that you had this gun, and that you shot her with itf

“A, It is not, * * *

“Q. Isn’t it a fact, Mrs. Barker, that you took this gun and you killed Mrs. Cummings because you were angry at her because she talked too much?

“A. I did not.

“Q. Isn’t that right?

“A. Positively not.

“ Q. Isn’t it a fact that after you shot Mrs. Cummings, that you got on top of her with a gun this way and pounded her head time after time with that gun, isn’t that true?

“A. Not to my knowledge.

“Q. Not to your knowledge. You wouldn’t say that it isn’t true?

“A. I say positively that I never did such a thing.

“Q. You never hit her with the gun after you had shot her ?

“A. Not to my knowledge.

“Q. Now, I want you to remember as nearly as you can everything that happened. Isn’t it a fact that you were the one that led Mrs. Cummings out there, and you took her there for the purpose of killing her with this gun?

“A. That is not true. * * *

“Q. Well, when you left the body of Mrs. Cummings, she didn’t move, did she?

“A. I don’t know.

“Q. You didn’t see her move, did you?

“A. I don’t know.

“Q. Well, did you or didn’t you? You were there ?

“A. I don’t know. * * *

“Q. And you carried this gun 600 feet from where you had killed Mrs. Cummings, and left it at the same place you burned the fire ?

“A. I don’t remember. * * *

“Q. Now, it is your claim that you don’t remember whether you grabbed this gun out of the snow or not, is that it?

“A. I don’t know how I got the gun, or if I got the gun.

‘ ‘ Q. When did you start to remember what had happened?

“A. I don’t know. * * *

“Q. You didn’t try to get any help, though, to send back, to see whether or not Mrs. Cummings was killed, did you?

“A. I didn’t do anything.

“Q. You never told anybody where she was?

“A. I didn’t see anybody.

“Q. You didn’t tell anybody that she might not be killed, that she might be injured, lying there in the snow?

“A. I didn’t know whether she was killed or not, until I came into your office.

“Q. The reason you didn’t tell anybody that she was there, injured, is because you did know she was killed?

“A. I did not. I take an oath to God.

“Q. How many times did you shoot her?

“A. I don’t know.

“Q. More than once?

“Ñ. I don’t know. I don’t know what happened.

‘ ‘ Q. And you want to still say that your story is true, and all those other stories are false?

“A. I don’t know what the stories are.

“Q. I have told you, haven’t I? I have told you of a witness seeing you hit Mrs. Cummings over the head with a gun, after you had shot her, and on top of her, pounding.her.

“A. I don’t know anything about that.

“Q. Do you still want to say that is not true ?

“A. Not to my knowledge. I don’t know what happened.”

Defendant was a witness on her own behalf. She testified:

“I will tell the world I didn’t shoot Mrs. Cummings — I didn’t want to shoot her, and I wouldn’t shoot her. ’ ’

Defendant further testified that she struggled with the deceased for the gun, so that she could get it and throw it away.

If defendant’s testimony is to he believed, she did not kill the deceased; and her statement to the prosecutor is to the same effect and indicates nothing that did show that she killed in self-defense. According to her testimony, she had knocked the gun out of the hand of deceased, and it had fallen in the snow. There is no claim on the part of the defendant that Mrs. Cummings thereafter recovered the gun, or that she herself secured the gun, or that she was in fear of her life or great bodily danger thereafter, or that she killed in self-defense. The most that can be said of defendant’s claim is that, on the one hand, she testified absolutely that she did not kill Mrs. Cummings; and, on the other hand, in her statement to the prosecutor, she said that she did not know what happened. Under such proofs the question of whether deceased was shot in the back of the leg or the front of the leg is of no probative value with regard to the claim of self-defense now urged by defendant’s counsel.

Much is said of the improper use by the prosecutor of photographic exhibits in the following part of his closing argument to the jury:

“Well, here are a couple exhibits, ladies and gentlemen. One of them is people’s exhibit 41. And you heard the witness testify about the blood spot up here and the blood spot down there (indicating). Of course, a body couldn’t have rolled down there, says Mr. Kelly.

“Mr. Kelly: What photograph — ■

“Mr. McCrea: It has been exhibited and you saw it.

“Mr. Kelly: Wait. So the jury won’t be confused. What date was that—

“Mr. McCrea: Never mind, Mr. Kelly. You had a chance to argue this.'

“Mr. Kelly: I want the jury to understand it.

“Mr. McCrea: Will you please not interrupt unless you have a legal objection?

“Mr. Kelly: 0. K. Go ahead.

“Mr. McCrea: So lie says, ‘Why, the body couldn’t have slid down head first.’ But then we take people’s exhibit 47, and again we see the two spots from different angles.

“Mr. Kelly: Now, wait, if the court please. I object because of the fact that—

“Mr. McCrea: Wait a minute. I am going to ask the jury be excluded if you want to make speeches again.

“Mr. Kelly: No, no.

“Mr. McCrea: Wait—

“The Court: Wait a minute, Mr. Prosecutor.

“Mr. Kelly: I object because the photographs that are being introduced by the prosecutor at this time, purporting to show the facts as to how the ground was on January 15th are photographs—

“Mr. McCrea: I am going to object to that as improper, if your honor please. The jury heard those exhibits introduced.

“The Court: Wait a minute. Mr. Kelly, I don’t think this is a proper interruption for you to go on and make an argument at this time. Those photographs are in evidence. The jury heard when and by whom they were taken, and the prosecutor has a right to argue from them, as you were permitted to argue from them. Then the jury can look at them when their time comes, and it will be their responsibility to make up their minds what significance there is, if any, to any of the marks.

“They are in evidence. You were permitted to argue about them, and I will now let the prosecutor argue his theory on them.”

Nothing more was said in the argument about the photographs in question. These photographs purported to show spots of blood on the snow at the scene of the killing. There was no attempt, as contended by the defense, to argue to the jury that these photographs purported “to show the facts as to how the ground was on January 15th.” They did not purport to show such facts; they were taken the following day. Approximately 50 photographs were introduced. Some of these were taken on the day of the shooting and some thereafter; some showed the general location of the place where Mrs. Cummings body was found; others showed what purported to be bloodstains on the snow; others, the physical contour of the-land; and others, the location and position of the body of the dead woman. When they were introduced in evidence, the jury was advised with regard to the time when the pictures were taken. There appears to have been no use of the photographs in question except to show the blood stains on the snow. They were not used to show the general conditions at the place where death occurred. The defense did not ask the court for any instructions with regard to the matter. Under the circumstances, it was not entitled to have the court interrupt the closing argument to call attention to the date when the photographs were taken. We are unable to see how the jury was confused, or the defendant prejudiced, as a result of the conduct of the prosecutor or the ruling of the court; and we find therein no grounds for reversing the conviction.

Upon this record, the verdict of the jury convicting defendant of manslaughter should not be reversed because of claimed errors in cross-examination as to where the bloodstains were located on the dress of deceased; nor should the conviction be reversed because of reference to the photographs by the prosecutor in his final argument.

We concur in Mr. Justice North’s determination of other claimed errors in the accompanying opinion; and find nothing to warrant a reversal of conviction.

Judgment affirmed.

Bushnell, C. J., and Potter, Chandler, and Butzel, JJ., concurred with McAllister, J.