People v. Smallwood

I cannot concur in reversal on the ground stated by Mr. Justice BUTZEL. This 15-year-old witness, on cross-examination, was asked:

"Now, Cathleen, you have been in trouble with the juvenile authorities before?"

The trial court, hearing the case without a jury, considered this to be an invasion of juvenile records and excluded the answer. Mr. Justice BUTZEL holds that the exclusion of the answer to this question was reversible error. While this ruling might have been premature, anticipating an actual attempt to offer the records in evidence, it was not reversible error. The reference to "juvenile authorities" could mean but one thing, namely, the probate judge as judge of the juvenile court, and the officers of that court. 3 Comp. Laws 1929, § 12834 et seq. (Stat. Ann. § 25.291 et seq.). The question called for a "yes or no" answer, and its exclusion is not of sufficient importance to justify a reversal solely on that ground. The only purpose of the question was to test the credibility of the witness. In trial without jury, credibility of the witness and the weight to be given her testimony was for the court (Cook v. Lake, 292 Mich. 689), and the trial judge had ample opportunity to observe the demeanor of the witness and hear her testimony. Had the answer been received, any follow-up of an inquiry into the records of the juvenile court would of necessity have been excluded.

My Brother quotes from People v. Cowles, 246 Mich. 429. To understand the connection, the entire quotation should be considered:

"Evidence offered to prove acts of the girl showing sexual perversion and lascivious conduct, inclusive of exposure of her person to school boys, was excluded. We think the testimony should have been received, not in extenuation of rape, but for its bearing upon the question of the weight to be accorded the testimony of the girl and the question of whether the mind of the girl was so warped by sexual contemplation and desires as to lead her to accept the imagined as real or to fabricate a claimed sexual experience."

The testimony thus excluded, which this court said should have been received, had no connection with or reference to trouble with juvenile authorities. The case is not authority for permitting the opening of an inquiry into juvenile records. Unless the transgression of a juvenile is of sufficient importance to reach the criminal court by way of the waiver route from the juvenile court (Act No. 288, chap. 12, § 26, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 16289-12 (26), Stat. Ann. 1942 Cum. Supp. § 27.3178 (596)]), sound public policy, as well as the statute in question, requires that the mantle of privilege should protect the child from public inquiry into the acts of the juvenile court.

In this case, a delayed motion for new trial was filed, heard and denied by the lower court nearly two years after conviction and sentence. Error in the denial of this motion is now relied on for reversal. A reading of Mr. Justice BUTZEL'S entire opinion leads to a fair inference that the real reason therein for reversal and granting a new trial is because the conviction was against the great weight of the evidence and that the motion for new trial should have been granted. The motion was mainly based on a claim of new testimony — that the girl had later repudiated her former testimony. We have frequently looked with disfavor on later admissions by a witness, that he or she had committed perjury in the trial, as a ground for granting a new trial. There was no abuse of discretion by the trial court in the case at bar in denying the motion. Plainly, a new trial (if one were held) would result in acquittal, if the complaining witness should adhere to her subsequent repudiation of her testimony. Under quite similar circumstances, this court upheld the lower court's denial of a new trial in People v. Van Den Dreissche, 233 Mich. 38.

I agree that the other questions raised do not require reversal. The conviction and sentence should be affirmed.

NORTH and SHARPE, JJ., concurred with BOYLES, C.J.