People v. Wein

382 Mich. 588 (1969) 171 N.W.2d 439

PEOPLE
v.
WEIN.

Calendar No. 1, Docket No. 52,208.

Supreme Court of Michigan.

Decided November 3, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Daniel P. O'Brien, for defendant.

DETHMERS, J.

On February 18, 1967, defendant, a Michigan resident, while driving an automobile, was stopped on a street in Detroit by a uniformed Detroit police officer for making a prohibited lefthand turn. Upon the officer's request, he produced a State of Michigan driver's license which had expired on defendant's last birthday, July 6, 1966. In consequence, he was charged, in the recorder's court of the city of Detroit, traffic and ordinance division, with the offense of operating a motor vehicle without a valid operator's license in his immediate possession.^[1]

A jury trial was had and defendant was found guilty as charged, sentenced by the court to serve 5 days in jail and to pay costs of $150 or, in default of such payment, to serve an additional 15 days in jail.

Upon appeal to the Court of Appeals, the verdict was affirmed (13 Mich. App. 260), but the cause remanded for specification or for reassessment of costs in accordance with law, citing People v. Hope (1941), 297 Mich. 115.

From the above, defendant's appeal is here on leave granted, 381 Mich. 793.

It was defendant's contention on trial, which occurred on April 5, 1967, that he did not know at the time the police stopped him on February 18, 1967, that his license had expired on the previous July 6, 1966. On cross-examination the prosecuting attorney asked defendant whether he had been convicted in Wayne county on December 6, 1966, of driving with an expired license. Defendant answered, "I don't believe so." The court then excused the jury and, in its absence, questioned defendant about his conviction in December of 1966, in Redford, of driving without a valid license. After considerable beating around the bush, defendant finally admitted that this had occurred and that the conviction related to the same expired license here involved. The court then stated to defendant that with such conviction having occurred only 4 months ago defendant could not now have been unaware that his license had expired on his birthday, July 6, 1966, that in the court's opinion defendant had been lying in that respect and that for lying to the jury he could be found in contempt of court. The jury was then recalled and, upon further cross-examination by the prosecuting attorney, defendant admitted before the jury the conviction in Redford.

Defendant complains, on appeal, that the conduct of the trial judge amounted to a denial to him of due process or a fair trial. We agree with the Court of Appeals that inasmuch as the judge's questioning of defendant and cautioning him about the possibility of contempt proceedings occurred outside the presence of the jury it did not deprive defendant of a fair trial. We know of no constitutional or other right of a defendant in a criminal case to commit perjury on trial without being cautioned by the court, outside the presence of the jury, of the possible consequences to him of such conduct. The administration of justice and the conducting of a court trial is for the purpose of discovering and arriving at the truth and applying the appropriate law thereto. Minds should be disabused of the idea that the trial of a criminal case is a game or a sport in which defendant, under the sanction of appellate court decisions, is to be assisted by the law in concealing the truth from the trial court and jury. Although the defendant may not be compelled to testify or be a witness against himself,^[2] if he elects to take the witness stand he should be required to take the oath to tell the truth and to do so. Had defendant further persisted in denying knowledge of the expiration of his license and his recent previous conviction thereof, it would have been competent for the prosecution to introduce into evidence the court records of such conviction to rebut defendant's testimony and establish his knowledge of the expiration. This would not have constituted prejudicial error. How the method here indulged would be any more so it is difficult to fathom.

Defendant says that the sentence of the court was vague and confusing. We do not find it to be so. It is within the limits provided by statute as to fine, costs, and imprisonment. CLS 1961, § 257.901 (Stat Ann 1968 Rev § 9.2601); CLS 1961, § 774.22 (Stat Ann 1954 Rev § 28.1213). However, its imposition of payment of costs sets forth no basis for its computation nor does the record disclose an adequate basis therefor. Accordingly, the Court of Appeals was correct in remanding for specification and reassessment of the costs and for completing the record to support it.

Affirmed.

T.E. BRENNAN, C.J., and KELLY, BLACK, and ADAMS, JJ., concurred with DETHMERS, J.

T.M. KAVANAGH, J., concurred in the result.

T.G. KAVANAGH, J., did not sit.

NOTES

[1] See MCLA §§ 257.311, 257.904a (Stat Ann 1968 Rev §§ 9.2011, 9.2604[1]). — REPORTER.

[2] See US Const, Am 5; Mich Const 1963, art 1, § 7. — REPORTER.