People v. Goldsmith

Fitzgerald, J.

Defendant Jessie Goldsmith was charged with having had carnal knowledge of a female over the age of 16 years by force and against her will, contrary to MCLA § 750.520 (Stat Ann 1954 Rev § 28.788). Defendant was tried by a jury and found guilty of the crime for which he was charged. On March 5, 1968, defendant was sentenced to serve 20 to 40 years in prison.

The rape allegedly occurred at approximately 10 p.m. on November 6, 1967, in the city of Detroit. Testimony elicited from the complainant disclosed that during the course of the crime, a date had been made with defendant for the following evening in the hope that police would then apprehend the man. The complainant had written her name and phone number on a note pad given her by defendant. The following evening defendant failed to keep his date with complainant at the prearranged time and place. However, he did manage to telephone her residence later that evening and a second appointment was arranged through a friend of the complainant, who was present and answered the telephone. The police were summoned and defendant was arrested on Euclid and Second where he had agreed to meet the complainant.

Shortly after defendant’s arrest, the policewoman assigned to the case removed from the property room at the jail his envelope of personal possessions and took the top two pages from a note pad. No writing was visible, but an impression of writing was brought out by rubbing a soft lead pencil over the top sheet. During the trial, the policewoman testified that she could make out certain letters and numbers and the complainant testified that the impression was in her handwriting. However, an objection was raised by the defense to the admission of the paper. Defendant’s property envelope was then obtained from the county jail, but no note pad was found, although it was pointed out that several items had been returned to defendant. The court admitted the paper and the jury was allowed to draw its own conclusions as to the writing on the paper.

Two questions are raised on this appeal and both concern people’s exhibit 1 which consisted of the two pages which were removed from a note pad. The Court is asked to address itself to the issue of whether people’s exhibit 1 was insufficiently authenticated as to render its admission into evidence prejudicial error which resulted in a miscarriage of justice.

It is the contention of defendant that he was tried under circumstances which deprived him of the guarantees provided by both the Federal and State constitutions when the exhibit in question was admitted over his objections. Defendant argues that the exhibit was never identified by any competent testimony which would connect it to him, nor was there testimony concerning the official character of the source of the exhibit. The people on the other hand contend that a sufficient authentication was shown once complainant testified that the exhibit contained her handwriting.

An examination of the record in the instant case indicates that before the exhibit was admitted into evidence, defendant made three requests to the court to inform the jury that no memo pad was found in defendant’s property. The requested instruction was given and the exhibit was then admitted into evidence for whatever it was worth.

As mentioned, it is contended by the defense that the two papers were not sufficiently connected to the defendant. Defendant cites no case law nor does his argument lend credence to the position he would have us adopt. The police officer testified that she took the pages from a memo pad found in the envelope containing defendant’s possessions and marked as having belonged to him. The court refused to allow the officer’s testimony as to the words or letters on the note pad. The complainant in the instant case testified that she had written her name and phone number on a pad of paper which was given to her by defendant. Furthermore, she stated that it was her handwriting on the piece of paper. Hence, on the basis of the factors mentioned, supra, it would thus appear that the paper itself was sufficiently connected with defendant so as to render it admissible. 1 Gillespie, Michigan Criminal Law and'Procedure (2d ed), §461.

We note that an examination of the envelope containing defendant’s personal effects revealed that it contained no memo pad. The failure to produce the pad . merely corroborated defendant’s contention that the pad never existed. Therefore, admitting the papers into evidence was not error of a prejudicial nature. The exhibit, as well as related testimony, went to the weight and sufficiency of evidence to be considered by the jury. See People v. Ely (1943), 307 Mich 452, and People v. McArron (1899), 121 Mich 1.

The admission pf the evidence in question in the instant case does not appear to be of such an irregular nature as would deprive defendant of a fair and impartial trial and should not serve as the basis of reversal. People v. Mosley (1953), 338 Mich 559; People v. Pickett (1954), 339 Mich 294.

We are also asked to consider whether the court committed prejudicial error by informing the jury of the results of an examination of defendant’s property held at his place of confinement.

Defendant argues that the trial court’s instruction was equivalent to the giving of testimony by the judge and as such constituted a deprivation of defendant’s right to due process.

This Court cannot agree with defendant’s contention, for defendant, by requesting such an instruction from the court is now precluded from raising error in the court’s compliance.

On three separate occasions, the defense requested the court to acquaint the jury with the results of the examination of the property envelope. The court complied with defendant’s request and an instruction was given. Objections were not raised to the particular instruction, for, as the record seems to indicate, defendant was satisfied that the matter of the memo pad’s existence was a question of fact which properly should be considered by the jury. We hold that the above allegation of error is easily resolved by application of 2 Gillespie, Michigan Criminal Law and Procedure, § 806, wherein it is stated;

“Objections not raised during the trial and not passed upon by the trial court will not be considered on appeal.”

On the basis of a lack of timely objection and the probability that the instructions given by the judge were favorable to defendant, we see no merit to defendant’s contention that prejudicial error was committed by the trial court in its instructions.

Affirmed.

All concurred.